(fionrt  of  jfttinois. 

C§?O  /  ^Riri 


NORTHERN  GRAND  DIVISION. 
SEPTEMBER    TERM,    A.  D.  1874. 


ELIJAH  S.  ALEXANDER, 

APPELLANT, 


vs. 


DAVID  F.  RUNDLE, 


APPELLEES. 


Appeal  from  the 

Circuit  Court  of 
Cook  County. 


BRIEF   AND  ARGUMENT  FOR    APPELLANT. 
By  SLEEPER  &   WHITON. 


(j^onrt  of 


NORTHERN  GRAND  DIVISION. 
SEPTEMBER    TERM,    A.  D.  1874. 


ELIJAH  S.  ALEXANDER,  , 

APPELLANT,/ 
vs  i  Appeal  from  the 

1  Circuit  Court  of 

Cook  County. 


BRIEF   AND   ARGUMENT  FOR    APPELLANT. 

FACTS. 

This  action  was  trover,  appellee  against  appellant,  in  the 
Circuit  Court  of  Cook  County,  for  $7,000  note  of  appellant,  pay- 
able to  order  Seymour  &  Rundle,  dated  June  24th,  1872,  one  year 
from  date. 

Carmichael  &  Co.  had  a  contract  with  the  Chicago  &  North- 
western Railway  for  building  a  tunnel,  on  what  was  called  the 
Baraboo  Air  Line.  Seymour  &  Rundle  had  half  interest  in  it. 
Hopper,  Boyle  &  Co.  had  a  contract  with  the  Philips  &  Colby 


Construction  Company,  for  building  forty  miles  of  the]Wisconsin 
Central  Railroad,  and  Seymour  &  Rundle  had  a  third  interest  in 
it,  and  another  contract  with  the  same  company  for  building  next 
sixty  miles  of  the  same  road,  beyond  the  forty  miles.  Seymour 
&  Rundle  had  a  third  interest  in  that  also.  We  think  that  Run- 
die's  name  is  not  known  in  any  of  these  contracts,  though  the 
fact  is  not  material,  except  as  it  bears  upon  Seymour's  real  inter- 
est in  this  note.  Fox  &  Howard  were  contractors,  having  their 
place  of  business  in  Chicago,  and  as  early  as  April  or  May,  1872, 
Seymour  began  to  negotiate  with  Howard  to  have  his  firm  buy 
Rundle's  interest  in  these  three  contracts.  He  made  statements 
to  Howard,  as  to  the  condition  of  the  work,  under  the  several 
contracts,  the  character  of  it,  and  of  their  property,  supplies,  &c., 
and  Howard  made  computations  and  calculations,  from  those 
statements,  to  enable  him  to  arrive  at  a  conclusion,  as  to  the  de- 
sirability of  becoming  interested  in  them,  and  preliminary  to  de- 
termining whether  his  firm  would  buy  Rundle's  interest.  From 
the  statements  made  to  him  by  Seymour,  and  the  computations 
and  investigations  made  by  Howard,  based  entire!}7  upon  Sey- 
mour's statements,  Howard  became  satisfied  that  the  contracts 
were  desirable  ;  that  the  work  was  profitable,  and  money  could 
be  made  by  doing  it.  Upon  consultation  with  his  partner,  Fox, 
they  declined  to  take  hold  of  them,  partly  for  want  of  time,  and 
partly  for  want  of  means  to  invest,  and  informed  Seymour  of 
their  determination.  Seymour  then  asked  Ho\vard  to  refer  him 
to  some  person  who  would  be  a  good  man  to  engage  in  that 
kind  of  work,  and  who  would  buy  Rundle's  interest.  Howard 
knew  Alexander.  Their  offices  were  in  the  same  building,  and 
through  Howard's  instrumentality  Seymour  and  Alexander  were 
brought  together.  Negotiations,  between  Seymour  and  Alexan- 
der, followed  their  introduction,  relative  to  the  sale  to  and  pur- 
chase by  Alexander  of  Rundle's  interest  in  the  three  contracts. 


Howard  was  present  at  most  of  the  interviews  between  Seymour 
and  Alexander,  indeed  all,  at  which  there  was  anything  particu- 
larly done  or  talked.  These  negotiations  continued  for  consid- 
erable time,  a  fortnight  or  more.  The  memoranda  of  computa- 
tions^vhich  Howard  had  made,  from  Seymour's  statements,  were 
present  at  the  interviews,  or  some  of  them.  Rundle  and  Col. 
Hopper  were  present  at  one  or  more  of  the  interviews,  between 
Seymour,  Howard,  and  Alexander.  At  many  if  not  all  of  these 
interviews,  conversation  was  had  between  Seymour  and  Alexan- 
der and  Howard,  relative  to  the  condition  of  the  work  under 
these  three  contracts,  or  really  on  the  Baraboo  Air  Line  Tunnel 
contract,  and  the  contract  for  building  the  first  forty  miles  of  the 
Wisconsin  Central  Railroad. 

SEYMOURS'S    STATEMENTS — HOPPER   &    RUNDLE. 

It  was  stated  by  Seymour,  that  he  and  Rundle  had  put  into 
the  work  on  the  tunnel  contract  $3000,  of  which  Rundle  had 
put  in  half.  That  there  had  been  some  accumulation  in  that 
work,  by-way  of  profits,  that  it  was  a  good  contract  and  profi- 
table. He  also  stated,  that  the  firm  of  Hopper,  Boyle  &  Co., 
had  invested,  in  plant,  supplies,  teams,  tools,  carts,  wagons,  &c., 
&c.,  on  Wisconsin  Central  Railroad  contract,  from  $33.000  to 
$35.000.  That  the  value  of  that  remaining  was  say,  $18,980, 
but  in  round  numbers  called  $18.000;  that  they  had  in  the  hands 
of  the  Philips  &  Colby  Construction  Company,  for  building  the 
Wisconsin  Central  Railroad,  retained  percentage  to  the  amount 
of  $ii.ooo.  It  arose  in  this  way,  by  the  contract  between  this 
construction  company,  and  Hopper,  Boyle  &  Co.,  85  per  cent, 
of  each  estimate  for  work,  was  to  be  paid  to  Hopper,  Boyle  & 
Co.,  and  15  per  cent  retained  by  the  construction  company, 
until  the  whole  work  was  completed,  when  it  was  to  be  paid 
over.  (Sevmour  savs  he  told  them  there  was  from  $8.000  to 


$9,000,  to  $10.000,  to  $11.000,  is  not  certain  just  what  he  did  say, 
while  Alexander  says,  $11,000,  and  Howard  $10,000  to  $11,000.) 
He  also  stated,  that  they  had  made  application  to  the  construc- 
tion company,  for  a  bonus  or  additional  pay  for  doing  the  work 
on  this  40  miles,  to  the  amount  of  $40,000;  were  sure  of  getting 
from  $30,000  to  $35,000.  From  Seymour's  testimony  this  appli- 
cation or  claim  was  based  upon  some  action  of  the  construc- 
tion company,  in  changing  the  line,  so  as  to  lessen  the  cuts  or  ex- 
cavation and  filling  on  the  line,  and  upon  the  fact  that  they  had 
found  rock,  where  there  was  no  estimate  for  it,  as  well  as  on 
account  of  some  delays  by  reason  of  bad  whether  or  other 
causes.  He  also  stated,  that  the  work  was  nearly  all  sub-let  to 
responsible  sub-contractors,  who  were  actively  at  work,  and 
doing  well  at  the  prices  for  which  the  work  was  sub-let  to  them. 
That  the  work  was  self  sustaining  at  the  85  per  cent,  and  the 
profit  was  at  least  the  15  per  cent,  retained  in  the  hands  of  the 
construction  company,  that  the  work  on  this  forty  miles  was  in 
such  a  state  of  forwardness,  that  it  would  be  completed  by  the 
I5th,  of  August,  the  contract  being  that  it  should  be  completed 
by  July  i$th,  and  that  Hopper,  Boyle  &  Co.,  did  not  owe  debts 
exceeding  in  amount  $1000  or  $1,500.  At  some  time  during  the 
negotiations  at  441  Wabash  avenue  Alexander  made  a  memor- 
andum in  writing  of  the  items  of  the  plant  on  the  railroad.  He 
produced  it  on  the  trial,  it  is  found  at  page  21,  abstract.  There 
is  some  dispute  between  Alexander,  Seymour,  Rundle,  and 
Howard  about  the  memorandum,  and  we  shall  refer  to  the 
statements  of  the  witnesses,  relative  to  it,  farther  on  in  this  argu- 
ment. We  shall  assume  and  prove,  by  an  examination  of  the 
evidence  hereafter,  that  before  the  negotiations  were  closed, 
Rundle  saw  this  statement  and  affirmed  its  correctness.  We  fur- 
ther assume  that  Seymour  in  the  negotiations  was  acting  by  Run- 
die's  authority,  or  that  he  ratified  what  Seymour  had  said  and 


done.  During  the  time  the  negotiations  were  going  on,  Rundle 
was  on  the  work  on  the  Wisconsin  Central  Railroad.  He  came 
from  there  to  Chicago,  some  few  days  before  the  final  consuma- 
tion  of  the  sale  of  his  interest,  to  be,  and  was  personally  present 
and  closed  the  trade  negotiated  by  Seymour. 

SIXTY-MILE  CONTRACT. 

Very  little  work  had  been  done,  at  this  time,  on  the  sixty 
miles  for  which  Hopper,  Boyle  &  Co.  had  a  contract. 

The~statements,  relative  to  this  contract  and  work  under  it 
were  substantially  that  it  was  a  far  better  contract  than  the  forty- 
mile  contract;  that  they  were  to  receive  about  25  per  cent,  more 
than  they  were  receiving  for  the  same  kind  of  work  on  the  forty 
miles;  that  it  was  a  very  desirable  and  profitable  contract,  and 
an  immense  amount  of  money  in  it  by  way  of  profits. 

FINAL  PROPOSITION. 

The  proposition  finally  made  to  Alexander,  after  the  matter 
had  been  discussed,  examined  and  explained,  was  that,  for  the 
money  Rundle  had  in  the  Barraboo  tunnel  contract,  Alexander 
should  pay  two  dollars  for  one;  that  Seymour  &  Rundle  together 
had  put  in  $3,000,  of  which  Rundle  had  put  in  half,  or  $1,500, 

and  for  that  they  required  Alexander  to  pay $3,ooo 

Plant  on  the  Wis.  Central  valued  at  $18,000.  Seymour 
&  Rundle's .  one-third,  $6,000.  Rundle's  one-half.  . . .  3,000 
The  percentage  retained  by  the  construction  company 
was  $11,000.  The  bonus  which  the  construction  com- 
pany would  pay  them,  $30,000  to  $35,000;  they  finally 
called  the  two  $42,000.  Seymour  &  Rundle's  one-third, 
$14,000.  Rundle's  one-half  of  $14,000  was 7,000 

Altogether  making $13,000 

The  tunnel  contract,  $3,000,  and  one-sixth  of  the  plant  on  the 


G 

Wisconsin  Central,  $3,000,  to  be  taken  as  $6,000  in  hand 
—which  Alexander  was  to  pay  in  cash.  Not  in  hand,  one- 
sixth  of  $42,000,  $7,000,  but  would  be  received  in  the  future; 
and  Seymour  &  Rundle  proposed  to  take  Alexander's  note,  due 
in  one  year,  without  interest,  for  that  item. 

The  sixty-mile  contract.  Alexander  was  to  come  into  on  the 
"  ground  floor,"  as  they  called  it,  the  same  as  if  he  had  been  one 
of  the  original  parties  to  the  contract — indeed,  they  claimed  to 
let  him  in  on  the  ground  floor  of  the  forty-mile  contract  the  same 
as  if  he  had  originally  been  one  of  the  parties  to  it,  he  paying 
only  for  the  money  actually  invested  on  the  railroad  contract, 
and  one-sixth  of  the  retained  percentage  and  the  bonus  they  were 
sure  to  get  from  the  construction  company,  and  which  they  rep- 
resented were  accumulated  profits  on  the  work  already  done. 

ALEXANDER  ACCEPTS. 

Relying  upon  the  truth  of  their  statements,  and  having  no 
}  *"  Jl  J        other  knowledge  of,  or  information  relative  to  the  character  or 
r*       progress  of  the  work,  the  value  of  the  plant,  the  amount  of  the 
*&W**KT  retained  percentage,  the  prospect  of  obtaining  the  bonus  from 
*  •*      4m*/    that   company,    the   indebtedness    of    Hopper,    Boyle    &    Co., 
whether   the   work   was   or  not   self-sustaining  upon  the  85  per 
5^&K  cent->  or  whether  the  sub-contractors  were  at  work  and  making 
L  /w»~  money  at  prices  they  agreed  to  do  their  work  for — as  he  ex- 
_  id*    presses  it,  "  without  seeing  a  book  or  having  a  figure  except 
/     what  they    gave   him,"   Alexander  accepted  their  proposition, 
and  agreed  to  pay  in  cash  two  dollars  for  one — $3,000  for  one- 
fourth  of  the  tunnel  contract,  and  $3,000  for  one-sixth  of  the 
value  of  the  plant,  and  agreed  to  give  his  note  for  $7,000  for 
one-sixth  of  the  retained  percentage  and  the  expected  bonus,  and 
to  step  into  Rundle's  shoes  in  the  three  contracts.     They  agreed 
to  have  writings  drawn  and  executed  at  a  future  time. 


PREPARATION  AND  EXECUTION  OF  THE  ASSIGNMENT. 

The  terms  of  the  contract  were  agreed  upon  in  the  latter 
part  of  the  week — from  the  2oth  to  the  22d  of  June.  Sunday 
morning  Rundle  called  upon  Mr.  Edwin  Walker,  an  attorney  at 
law,  and  Alexander's  legal  adviser,  and  at  his  request  Walker 
went  to  Alexander's  house,  to  hear  their  statements  of  the  con- 
tract, preparatory  to  preparing  a  written  assignment  of  the  inter- 
est of  Rundle  in  the  three  contracts,  to  Alexander.  The  parties 
stated  the  terms  of  their  contract  to  Walker.  (He  states  them 
in  detail  in  his  testimony,  and  corroborates  Alexander  and  How- 
ard, and  sustains  the  statement  given  above,  of  the  proposition.) 
On  the  24th  day  of  June,  1872,  he  had  the  paper  prepared,  the 
parties  appeared  at  his  office,  executed  the  writing  prepared  by 
Walker,  which  is  found  at  page  33  of  the  abstract.  Alexander 
paid  the  $6,000  in  money,  and  gave  this  note  in  question  for 
$7,000.  Seymour  and  Rundle  at  once  dissolved  their  partnership, 
signed  articles  of  dissolution,  to  which  was  appended  a  statement 
that,  the  business  of  the  firm  would  still  be  continued  at  441  Wa- 
bash  avenue,  under  the  firm  name  and  style  of  Mark  T.  Seymour 
&  Co..  which  firm  was  composed  of  M.  T.  Seymour,  Joseph  O. 
Rutter,  and  E.  S.  Alexander.  (See  Abstract  page  28.)  They 
printed  cards  and  letter-heads  with  firm  name,fixing  the  place 
of  business  there,  and  put  up  their  sign  there.  Rundle  surren- 
dered to  Alexander  the  key  to  the  office  dpor;  the  keys  to  the 
safe  were  carried  by  the  bookkeeper  and  Seymour. 

THEY    GO   TO   THE    WORK. 

On  the  5th  of  July,  1872,  Seymour,  Rundle  and  Alexander 
left  Chicago  to  go  to  the  work.  Rundle  had  come  from  there 
but  a  few  days  before.  They  arrived  at  Steven's  Point,  Wiscon- 
sin, where  the  headquarters  of  Hopper,  Boyle  &  Co.  were.  They 
met  Flynn,  one  of  the  members  of  the  firm,  who  had  come  there 


from  Des  Moines,  Iowa,  sixty  days  before,  and  bought  into  the 
contract  for  building  the  first  forty  miles.  He  had  pnt  in  $9,000 
in  money,  and  it  was  all  sunk  and  lost.  He  was  preparing  to 
abandon  the  work,  and  take  his  teams,  wagons,  carts  and  tools 
away.  He  owned  all,  or  nearly  all,  teams,  carts,  wagons,  and 
tools,  fit  for  use  on  the  work.  The  sub-contractors  were  not  at 
work,  but  had  surrendered  their  respective  jobs  to  Hopper, 
Boyle  &  Co.,  with  the  exception  of  two,  which  Rundle  admit- 
ted he  knew  when  the  contract  was  signed,  but  he  suppressed 
the  truth  in  relation  to  it  from  Alexander.  The  supplies,  that 
had  been  represented  to  be  on  hand,  were  not  there.  The  four 
thousand  bushels  of  corn  had  dwindled  into  one  hundred  to  one 
hundred  and  twenty-five  bags,  holding  two  to  two  and  half  bush- 
els each,  and  what  was  there  was  rotten  and  worthless.  The 
three  thousand  bushels  of  oats  had  dwindled  into  the  same  num- 
ber of  bushels  as  the  corn  ;  the  horses  and  mules  were  unfit  for 
use,  and  really  the  whole  of  the  plant,  which  they  had  estimated 
at  eighteen  thousand  dollars,  had  dwindled  almost  to  as  many 
hundreds  of  dollars.  The  company,  instead  of  owing  one  thou- 
sand to  fifteen  huudred  dollars  debts,  were  owing,  as  appeared 
from  their  books,  $28,846,69 — (page  29  abstract,  and  the  testimo- 
ny of  Alexander  and  Montgomery,)  and  in  fact  were  owing 
$40,632,52.  See  Alexander's  testimony,  page  31  ;  Montgome- 
ry's testimony,  page  55  and  following,  and  58  and  59  ;  and  the 
corrected  account  made  by  Montgomery,  page  59,  abstract. 
Instead  of  85  per  cent,  paying  the  cost  of  the  work,  the  whole 
amount  of  the  contract  price  was  insufficient  by  $38,000;  and 
instead  of  $11,000  retained  percentage,  there  was  only  a  little 
over  $3,100.  Everything  had  been  misrepresented. 

Alexander  finding  that  Flynn  was  determined  to  leave  the 
work,  to  avoid  the  demoralization  which  would  result,  labored 
with  him,  in  the  presence  of  Seymour  &  Rundle,  to  induce  him 


to  stay  till  the  forty  miles  was  completed;  and  as  a  final  induce- 
ment, agreed  to  make  good  his  loss  of  $9,000  to  him,  if  he  would 
do  so.  Flynn  consented  to  stay. 

Having  arranged  with  Flynn  to  stay,  Alexander  turned 
upon  Seymour  &  Rundle,  and  demanded  the  return  of  his  money 
and  the  note  he  had  given.  They  refused  to  comply,  but  said 
they  would  straighten  matters  up  when  they  got  home — would 
do  whatever  was  right.  Alexander,  in  their  presence,  and  with 
their  acquiesence,  at  least,  directed  Montgomery,  the  bookkeeper, 
to  make  out  from  the  books  and  send  him  at  Chicago,  a  statement 
of  the  liabilities  and  assets  of  Hopper,  Boyle  &  Co.,  and  the  in- 
dividual accounts  of  the  members.  The  statement  is  found  at 
page  25  of  Abstract.  It  was  sent  in  a  letter  dated  July  13,  1.871. 

WHAT   WAS    DONE    AFTER   THEY    RETURNED. 

It  will  be  remembered  that  Rundle  came  to  Chicago  from 
the  work,  just  before  the  closing  of  the  contract  with  Alexander, 
which  he  and  Seymour  had  been  negotiating  for  some  two  weeks, 
more  or  less  ;  that  prior  to  this  time  both  Rundle  and  Hopper 
had  been  present  at  some  of  the  interviews.  Rundle  in  his  tes- 
timony, at  page  69  of  Abstract,  469  Record,  states  that  "  Sey- 
"  mour,  or  Seymour  and  Alexander,  exhibited  the  statement  to 
"  me,  and  asked  me  if  it  was  correct  ;  or,  he  said  I  suppose  it  is 
"  correct.  I  told  him  I  presumed  likely,  though  Seymour  knew 
"  as  much  about  it  as  I  did.  I  refer  to  the  statement  Alexander 
"  exhibited  here  yesterday." 

While  he  dodges  around  the  truth,  we  insist  that,  his  testi- 
mony shows  that  he  knew  all  about  this  statement.  It  will  also 
be  remembered  that  Seymour,  Rundle,  and  Alexander  left  Chi- 
cago for  the  work  July  5th;  that  immediately  on  reaching  Stevens' 
Point,  the  facts  which  existed  there  made  it  evident  that,  the  rose- 
colored  picture,  Seymour  &  Rundle  had  drawn,  was  a  creature 


TO 


of  their  imagination,  not  even  having  an  outline  of  truth  for  its 
support  ;  that  there  never  was  the  least  foundation  for  the  state- 
ments made,  and  they  were  forced  to  admit  it  then  and  there. 
That  Alexander  then  and  there  demanded  the  return  of  his  note 
and  repayment  of  his  money  ;  that  they  put  him  oft'  till  thev  got 
home,  meaning  Chicago  ;  their  apology  for  the  condition  of  af- 
fairs being  that  they  were  deceived — did  not  intend  to  deceive 
him  ;  that  in  their  presence,  if  they  did  not  unite  with  him,  Alex- 
ander ordered  a  statement  to  be  made  and  sent  to  him  at  Chicago  ; 
that  they  all  came  home.  Alexander  at  once  went  to  Howard, 
who,  to  use  his  own  expression,  "  had  roped  Alexander  into  this 
matter,"  and  told  him  he  "  had  been  robbed,"  showing  clearer 
than  anything  else  could,  the  real  truth  as  it  impressed  itself  up- 
on Alexander  at  the  time.  Alexander  told  Howard  the  facts  as 
he  found  them  on  the  work,  and  invoked  his  aid,  to  extricate 
him  from  the  position  in  which  he  found  himself.  Montgomery, 
the  bookkeeper,  sent  the  statement  on  the  I3thjuly.  In  the 
meantime  Seymour,  Rundle,  Alexander,  and  Howard,  met  at 
441  Wabash  Avenue,  Alexander  demanding  redress  ;  that  his 
note  should  be  returned  to  him,  and  claiming  that  he  had  been 
deceived  by  misrepresentations  as  to  the  condition  of  things 
there  ;  that  there  was  no  consideration  for  the  note.  Seymour  & 
Rundle  sought  to  parry  his  demand,  by  asking  him  to  compro- 
mise, to  pay  part  of  it.  With  $3,000  of  Alexander's  money  in 
their  pockets,  paid  for  one-sixth  of  that  plant,  that,  at  the  outside 
figures,  was  not  worth  $1,000  ;  knowing  then  that  the  state- 
ments made  to  Alexander,  and  upon  which  he  had  relied,  were 
untrue  ;  Rundle  knowing  that  some  if  not  all  of  them  were  un- 
true, as  he  admitted,  and  as  he  must  have  known,  seeing  that  a 
week  before  he  made  the  trade  with  Alexander,  he  was  on  the 
work,  and  came  direct  from  there  to  close  it,  after  it  had  been 
negotiated  for  him  by  Seymour;  they  had  the  coolness  and 


II 


effrontery  to  ask  him  to  pay  more  money,  for  a  thing  that  was 
not  only  worthless,  but  a  curse  to  any  man  to  have,  a  certain, 
sure  maelstrom,  which  had  swallowed  all  that  the  parties  had  to 
put  into  it,  and  which,  in  the  language  of  Flynn,  whose  $9,000 
had  been  lost  in  sixty  days,  was  "  sure  to  ruin  any  company  to 
"  undertake  to  continue  it  and  put  it  through." 

Finally,  having  received  this  statement,  showing  the  debts 
to  be  $28,846.69— all  but  the  $13,000  "current  Pay  Rolls,"  of 
long  standing  ;  that  the  estimate  of  the  June  work,  which  had 
cost  $13,000  for  the  mere  labor  of  men,  not  including  teams,  sup- 
plies, superintendent,  &c.,  was  only$n,ooo;  that  the  retained 
percentage  was  only  $8,941  instead  of  $11,000,  and  which,  upon 
further  investigation  turned  out  to  be  only  $3,100,  showing  debts 
over  the  June  work  of  $15,846,69,  instead  of  $1,000  to  $1,500; 
they  all  knowing  the  condition  of  affairs  on  the  work,  as  well  as 
that  there  was  no  possibility  of  completing  it  by  i5th  of  August, 
Seymour,  Rundle,  Alexander,  and  Howard  met  for  the  last  time, 
July  18,  1872,  at  the  office,  441  Wabash  Avenue,  and  renewed 
the  conversation  had  at  previous  meetings,  since  the  return  trom 
the  work. 

THE    TRANSACTION    OF  JULY     l8,    1872. 

It  is  evident  that,  that  interview  was  not  smooth  and  placid, 
"  they  were  not  a  happy  family."  Alexander  did  not  make  his 
demand  for  the  surrender  of  that  note,  in  honied  words  ;  all  that 
kind  of  talk  and  manner  had  been  tried  and  exhausted.  He  was 
very  pronounced  in  his  language  ;  he  did  not  put  his  demand  as 
if  he  were  requesting  a  favor  ;  he  demanded  it  as  a  right  ;  told 
them  he  had  been  deceived  ;  that  they  had  misrepresented  the 
facts.  He  was  terribly  in  earnest  in  what  he  had  come  there  to 
accomplish.  Seymour  and  Rundle  winced  under  the  charges  he 
made,  because  he  wielded  the  sword  of  truth.  So  fierce  and 


12 


denunciatory  was   his  language,    and  so  personal  was  he  in  his 
charges  of  bad  faith  on  their  part,  that  Rundle  affected  an  air  of 
wounded  honor,    and   withdrew   from  the  contest,  leaving  Sey- 
mour in   possession  of  the  note,   saying  to   him,  "you  have  as 
much  interest   in  it   as  I   have,  do  with  it  as  you  are  a  mind  to, 
and  any   settlement  you   may  make,  I   will  be  satisfied  with." 
We  know  there  is  a  dispute  between  them  on  this  point.      Run- 
die  says   he  told  Seymour  to  keep  it  for  him  and  he  would  hold 
him  responsible.     Seymour   says  the  language  was  "take  the 
note  and  do  as  you  are  a  mind  to  with  it,  and  I  will  hold  you  re- 
sponsible," and  they  both  undertook  to  say,  and  to  make  the  jury 
believe,  that  Alexander  was  not  there  demanding  the  surrender 
of  the  note.     Alexander  and  Howard  say  that  was  just  what  he 
was  there  for.  And  while  Rundle  says  that,  all  that  Alexander  said 
which  made  him  mad  was,  that  the  work  was  a  pretty  bad  looking 
piece  of  work,  or  language  of  that  kind,  Alexander  and  How- 
ard say  that,  Alexander  charged  him  with  misrepresentation  and 
fraud,  and   they  both   say  that  Rundle's  language  substantially 
was,  "  Mark  you   have  as  much  interest  in  the  note  as  I  have, 
take  it   and  do   what  you  are  a  mind  to  with  it,  and  any  settle- 
ment you  make  with  Alexander  I  shall  be  satisfied  with."     Why 
did  Rundle   leave  the  note  with  Seymour  if  not  to  make  settle- 
ment, which   his  offended  dignity  would  not  allow  him  to  stay 
and  consummate   himself  ?     If  no  settlement    were  to  be  made 
why  did  he  not  carry  it  away  with  him  ?     Why  does  he  say,  as 
at  page  six  of  Abstract,  "I  gave  the  note  to  Seymour  because  I 
would  just  as  soon  he  would  hold  the  note  and  settle  the  matter 
as  myself— to  settle  the  matter  in  regard  to  that —to  make  it  sat- 
isfactory to  Alexander?"     A  casual  reading  of  his  testimony,  and 
comparison  with  Seymour's,  and   the  undisputed  facts,  will  con- 
vince any    man  that,  he  was    wilfully  lying    on    every  material 


point,  or  corruptly  suppressing  the  truth,  whenever  he  thought  it 
would  injure  his  cause  if  brought  to  light.  There  is  not  so  wide 
a  difference  between  Seymour,  Alexander,  and  Howard,  as  really 
to  affect  the  case.  He  says  Rundle  told  him  to  do  what  he  had 
a  mind  to  with  the  note.  Alexander  and  Howard  say  the  same 
thing.  This  was  authority  to  make  any  settlement  with  Alex- 
ander he  had  a  mind  to;  to  comply  with  Alexander's  demand 
that  the  note  be  surrendered  to  him.  (We  have  seen  that  Rundle 
talks  about  settling  with  Alexander.)  The  dispute  then  was 
whether  the  note  should  be  surrendered. 

Before  an  agreement  had  been  reached,  Rundle  got  mad,  took 
the  note  from  his  pocket,  gave  it  to  Seymour  "because  he  had  just 
as  soon  he  would  settle  the  matter  as  himself,"  and  told  him  to  do 
what  he  was  a  mind  to  with  it.  He  left  Seymour,  Alexander, 
and  Howard  there  to  complete  the  work  begun — and  which  all 
had  come  there  to  do — to  make  the  settlement,  which  Alexan- 
der demanded,  satisfactory  to  him.  What  if  Rundle  did  say 
"  I'll  hold  you  responsible  ?"  It  did  not  mean  that  Seymour 
should  not  exercise  his  judgment,  in  settling  the  matter  with  Al- 
exander, nor  did  it  mean  that  he  would  hold  him  responsible  for 
the  note.  It  meant  only  that  he  would  hold  him  responsible  for 
the  settlement  he  made.  He  gave  Seymour  power  to  act  in  his 
discretion,  and  in  the  exercise  of  that  discretion,  even  on  Sey- 
mour's statement,  he  had  authority  to  make  the  arrangement  he 
did  make,  with  reference  to  that  note;  and  when  you  add  the 
weight  of  the  testimony  of  Alexander  and  Howard,  there  was 
no  question  whatever  as  to  Seymour's  power  to  surrender  that 
note  to  Alexander,  as  he  and  Rundle  ought  to  have  done  at 
once.  The  truth  is,  knowing  what  they  must  have  known, 
from  being  connected  with  that  work  as  long  as  they  had,  they 
knew  better  than  to  make  the  representation  they  did.  It  was 


a  wicked  fraudulent  thing  in  them,  to  draw  anybody  into  the 
contract,  they  led  Alexander  into.  But  having  done  what  they 
had,  when  the  facts  were  discovered  upon  the  first  sight  of  the 
work,  it  was  a  great  fraud  on  their  part  to  hesitate  a  moment 
about  surrendering  the  note.  Seymour  knew  it  and  felt  it,  proba- 
bly Rundle  did,  but  he  did  not  like  the  alternative  of  being 
branded  a  fool  or  knave,  and  so  he  ran  away,  leaving  Seymour 
to  do  what  was  right,  to  the  extent  of  surrendering  the  note,  "  to 
settle  the  matter  with  regard  to  that,  to  make  it  satisfactory  to 
Alexander." 

WHAT  WAS  DONE  AFTER  RUNDLE  LEFT. 

Rundle  says  Howard  was  not  there  when  he  handed  the 
note  to  Seymour,  and  went  away.  Seymour  can't  be  positive; 
but,  feeling  the  necessity  of  having  Howard  away,  he  "  screws 
his  courage  to  the  sticking  point,"  and  swears  that  it  is  his 
impression  he  was  not  there.  Alexander  and  Howard  both 
say  he  was  there.  Howard  gives  a  reason  why  he  was 
there.  He  had  "  roped  Alexander  into  these  contracts,"  and  felt 
it  a  duty  to  see  him  out.  He  and  Alexander  went  there  to  get 
that  note;  and  Howard  is  very  certain  as  to  what  occurred  and 
what  was  done.  There  is  no  doubt  of  his  being  there.  Even 
Seymour  says  (p.  99  Rec.,  p.  13  Abs.)  that  he  had  a  conversa- 
tion with  Alexander  similar  to  what  Alexander  and  Howard 
both  swear,  in  presence  of  Howard,  there,  that  day —but  pre 
vious  to  that. 

There  are  a  few  things  that  we  may  assume  as  not  in  dis- 
pute. Rundle  gave  that  note  to  Seymour,  and  went  away,  tell- 
ing him  "to  do  as  he  was  a  mind  to  with  it;  that  he  could  not 
stay  and  talk  with  Alexander;"  implying  that  Seymour  could; 
and  he  left  the  note  so  that  Seymour  could  settle  the  matter,  and 


make  it  satisfactory  to  Alexander — to  surrender  it,  if  that  alone 
would  satisfy  him. 

V 

After  Rundle  went  away,  Seymour  put  that  note  in  the  safe, 
or  directed  Gaytes,  the  bookkeeper  to  do  it,  and  it  was  done. 
Alexander,  who,  until  then,  had  never  had  a  key  to  any  drawer 
in  that  safe,  had  a  key  given  to  him.  He  swears  to  it,  and  pro- 
duces the  key  on  the  trial.  Howard  swears  to  it.  Seymour 
does  not  know  whether  he  did  or  not.  As  farther  evidence, — 
Alexander  put  into  that  drawer  the  letter  or  memorandum  given 
him  by  his  father-in-law  to  keep  safely.  Rundle  had  no  key  to 
the  outer  door  of  the  safe:  there  were  but  two — one  carried  by 
Seymour,  the  other  by  the  bookkeeper.  When  Rundle  gave 
Alexander  the  key  to  the  office,  he  asked  for  the  safe  key,  but 
Rundle  had  none.  He  managed  in  some  way,  in  September,  to  get 
a  key  to  the  outside  door  oi  the  safe;  he  did  not  get  one  to  this 
drawer,  but  employed  a  locksmith  to  pick  the  lock,  and  in  that 
way  got  the  note.  If  Gaytes  had  had  a  key  to  that  drawer, 
Rundle  could  have  obtained  it,  as  well  as  the  outside  key.  Now 
when  that  drawer  was  set  apart  for  Alexander's  private  use,  and 
the  note  placed  therein,  and  the  key  given  to  him,  it  was  placed 
in  his  possession,  and  under  his  control. 

Here  there  is  some  dispute  about  the  agreement  made  be- 
tween Alexander  and  Seymour  at  the  time.  We  will  refer  to 
the  statement  of  Seymour,  Alexander  and  Howard  on  that  point. 
Alexander's  statement  of  the  whole  matter  commences  with  the 
paragraph  at  the  foot  of  page  26  of  Abstract,  where  he  went 
to  Howard  after  the  return  to  the  work.  He  states  on  page  27 
what  he  told  Howard;  how  they  spent  their  time  for  three,  four, 
or  five  days;  the  conversation  that  was  had  at  441  Wabash  ave- 
nue, July  i8th;  what  he  said  that  made  Rundle  mad;  what  Run- 
dle did  with  the  note,  and  what  he  said  to  Seymour  when  he  gave 


i6 

the  note  to  him;  how  Rundle  beckoned  him  to  the  door,  and  he 
went,  leaving  Seymour  and  Howard  in  the  private  room.  On 
his  return,  Howard  still  being  there,  he  says,  "  Seymour  made 
"  the  remark  to  me,  that  he  had  made  before,  that  I  should  not 
"pay  the  note;  that  I  ought  not,  and  that  it  should  be  surren- 
"  dered  to  me ;  and  if  it  was  not  satisfactory  to  Rundle,  he  would 
pay  his  part  himself." 

"  After  talking  a  little,  Seymour  says :  '  Now,  Aleck,  this 
"  thing  may  turn  out  differently,  or  better  than  you  expect — or 
"  better  than  it  looks  to  us  now.  You  shall  take  this  note  and 
"  put  it  in  the  safe,  in  a  drawer  that  shall  be  set  aside  to  you,  and 
"  the  note  shall  be  subject  to  your  order,  and  be  your  prop- 
"  erty,  and  you  shall  hold  it  until  this  work  is  completed,  and  if 
"  the  work  does  pay  a  portion  of  the  profit  which  we  supposed 
"  we  did  have  on  hand — that  is,  of  the  $42,000  for  which  it  is 
"  given — as  a  matter  of  course  you  are  willing  to  pay  your  por- 
"tion  of  it'" 

He  then  relates  that  the  bookkeeper  was  called  on  to  clear 
a  drawer  for  him,  which  was  done,  the  note  put"  in  it,  and  key 
given  to  him,  which  he  produced.  He  also  states  that  the  envel- 
ope had  this  superscription  on  it:  "Alexander's  personal  and 
private  property;  to  be  delivered  to  no  one  without  his  orders." 

Then  follows  the  articles  of  dissolution. 

His  statement  as  to  the  matter,  on  cross-examination,  is 
found  at  pages  39,  40,  and  41  of  Abstract. 

Howard's  statements,  on  direct  examination,  of  the  conver- 
sations after  Seymour,  Rundle  and  Alexander  returned  from  the 
work,  commences  at  page  48  of  Abstract,  315  of  Record,  and 


continues  to  325  of  Record — and  on  his  cross-examination,  page 
51  Abstract,  342  Record,  and  continues  to  347. 

Seymour's  statement  on  his  direct  examination  is  found  at 
page  65  of  Abstract,  and 444  of  Record;  on  his  cross-examination, 
at  page  68  of  Abstract,  and  462-3  of  Record  he  says,  he  does 
not  think  he  stated  what  Alexander  and  Howard  say  he  did,  but 
does  say,  "  I  will  not  swear  positively  that  I  did  not."  (Foot  of 
page  68.) 

We  have  some  other  evidence  corroborating  our  position. 
Alexander's  statement,  of  what  Seymour  said  to  him,  the  morn- 
ing after  Alexander  returned  from  the  burial  of  his  father-in-law 
(Abs.  pp.  29  and  30),  both  on  Michigan  ave.  and  at  his  office,  in  the 
presence  of  Tyrrell;  as  well  as  the  contents  of  the  letter  written 
from  the  Tremont  House.  TyrrelPs  statement,  page  53;  Wil- 
son's statement,  page  54;  Seymour's  version  of  these  two  con- 
versations and  the  letter,  is  found  at  page  150!  Abstract,  contin- 
uing on  pages  16,  17  and  18,  of  cross-examination,  and  20  of  re- 
direct; also  at  page  66  of  Abstract.  An  attempt  is  made  to 
corroborate  Seymour  by  the  testimony  of  his  daughter.  Her 
statement  begins  at  page  71  of  Abstract,  and  continues  on  to  72. 

REVIEW  OF  ABOVE  TESTIMONY. 

We  say  that  there  is  no  escape  from  the  position  we  assume, 
that  this  note  was  surrendered  to  Alexander  on  the  i8th  of  July, 
1872;  and  that  the  abstraction  of  it  from  the  safe,  by  Rundle, 
was  a  larceny. 

i.  We  have  the  positive  unequivocal  statement  of  Alexan- 
der and  Howard  that,  it  was  agreed  between  Alexander  and  Sey- 
mour that  the  note  was  to  be  cancelled,  and  that  the  amount 
Alexander  ever  should  pay  upon  it,  was  what  profits  ultimately 
should  be  made. 


i8 

2.  We  have  the  fact  that  the  note  was  put  into  a  drawer  in 
the   safe,   which  was  set  apart  to  Alexander,  and  he  was  given 
the  key  to  it.     Howard  says  (Abs.  p.  49,  Rec.  p.  322)  that 
"Alexander  had  a  key  given  him  at  that  time  for  a  drawer  in  the 
safe."     Alexander  says  the  same  thing,  ana  produces  the  key. 
Rundle  had  to  pick  the  lock  to  get  the  note. 

That,  as  we  have  said  before,  placed  the  note  in  Alexander's 
possession/so  that  it  never  could  be  delivered  to  any  one  without 
his  orders,  unless  the  lock  was  picked  or  broken,  and  the  note 
stolen  out;  as  it  was,  in  fact,  by  Rundle,  afterwards. 

3.  We  have  Seymour's  statement  (Abs.  p.  19,  Rec.  p.  113) 
when  Alexander  threatened  to  prosecute  Rundle,  and  have  him 
locked  up,  that,    "If  Rundle  did  take  the  note,  it  -was   entirely 
wrong;  that  he  had  no  more  right  to  take  it  than  he  had  to  take  one 
of  his  horses."     And   while  he  attempts  to  make  it  appear  that 
his  proposition  to  stand  by  Alexander  in  the  prosecution  of  Run- 
dle, was  conditional  upon  Rundle  having  done  wrong,  or  crimi- 
nally wrong,  it  does  not  lessen  the  force  of  his  assertion,  that,  it 
was  wrong  for  Rundle  to  take  the  note,  and  that  he  had  no  more 
right  to  take  it,  than  he  had  to  take  one  of  Alexander's  horses. 
Had    he   taken   the   horse  in   the  same  way  he  did  the  note,  it 
would  have  been  larceny.     If  he  had  no  more  right  to  take  the 
note  than  the  horse,  he  had  no  right  at  all.     Taking  the  note  un- 
der the  circumstances  he  did,  without  right,  was  stealing  it,  just 
as  taking  Alexander's  horse  from  his  barn  would  have  been  lar- 
ceny. 

4.  But  Wilson  and  Tyrrell  tell  us  that  Seymour  not  only 
said  Rundle  had  no  more  right  to  take  the  note  than  to  take  one 
of  Alexander's  horses, — but  they  say,  he  said  it  was  Alexander's 
personal  or  private  property,   corroborating  Alexander   as   to 


what  he  says  was  written  on  the  envelope.  In  the  note  Sey- 
mour wrote  to  Alexander  from  the  Tremont  House,  he  clearly 
recognized  Alexander's  right  to  the  possession  of  the  note,  be- 
cause he  said,  "  I  have  your  note,"  and  "  If  I  do  not  see  you  be- 
fore 4  o'clock  to  give  it  to  you,  you  will  find  it  in  the  safe  at  441 
Wabash  avenue."  See  Alexander's  statement  of  contents,  Abs. 
page  30,  Rec.  page  180;  Tyrrell's  statement,  Abs.  page  53; 
Seymour's  Abs.  page  18,  Rec.  page  118.  He  says,  "I  think  I 
did  tell  him  in  that  note,  if  I  did  not  see  him  to  give  him  the  note 
before  4  o'clock,  he  would  find  it  in  the  safe." 

5.  One  thing  is  evident,  Seymour's  memory  was  very 
faulty — no  reliance  can  be  placed  upon  it.  There  can  be  no 
doubt  that  Wilson,  Tyrrell  and  Alexander  tell  the  truth.  It  is 
not  necessary  to  say,  Seymour  wilfully  misstated  it.  He  was 
struck  down  with  paralysis  August  2d.  His  memory  was  im- 
paired. We  think  perhaps  he  did  not  try  very  hard  to  remem- 
ber. But  whatever  we  may  say  about  him,  having  the  utmost 
charity,  his  version  of  the  matter  is  not  to  be  relied  on,  either 
from  weakness  of  memory,  or  from  a  purpose  not  to  remember 
or  state  the  exact  truth.  Alexander  and  Howard  were  there  to 
get  that  note  back.  The  reason,  alleged  by  Alexander,  was  that 
he  had  been  robbed,  deceived,  defrauded,  that  there  was  no  consid- 
eration for  the  note.  Howard  went  there  to  aid  him,  because  he 
"had  roped  Alexander  into  the  contract."  Seymour  himself 
says,  at  page  13  Abstract;  97  and  98,  Record,  that  he  did  not 
tell  Alexander  that  he  should  not  pay  that  note,  and  if  Rundle 
found  fault  about  that  settlement,  he  would  pay  it  himselt — at  the 
time  of  the  delivery  of  the  note — at  the  very  instant  of  time,  but 
farther  on,  page  record  99,  he  says,  while  -denying  that  he  made 
such  statement,  at  the  delivery  of  the  note,  then,  yet  that  "I  had  a 
"  conversation  with  him  in  the  presence  of  Howard,  verv  similar 


20 

"  to  that.  It  was  in  our  conversation  previous  to  that  there  that 
"  day.  I  had  stated  almost  as  much  a  good  many  times  in  other 
"  conversations." 

Now  this  is  just  what  Howard  and  Alexander  say,  that  all 
this  was  said  in  the  presence  of  Howard.  But  Seymour  endeav- 
ors to  make  it  appear  that  it  was  not  said  at  the  -very  instant  of  time 
when  the  note  went  into  the  safe,  and  by  this  quibble,  break  the 
force  of  his  statement.  As  though  with  his  treacherous  memory  he 
could  tell  just  what  was  said  at  any  particular  time  during  that  day, 
in  the  conversations  there.  But  it  was  all  one  conversation,  both 
before  and  after  Rundle  left.  What  was  said  after  was  but  a  contin- 
uation of  what  was  said  before.  This  matter  had  been  talked  over 
for  three,  four,  or  five  days.  It  had  been  talked  over  that  morn- 
ing. Alexander  was  in  earnest;  made  charges  of  deception, 
misrepresentation  and  fraud.  Told  Rundle  he  was  a  fool  or  a 
knave.  Seymour  said,  as  Alexander  and  Howard  say  he  said, 
that  he  ought  not  to  pay  the  note — should  not.  Seymour  says 
they  had  a  conversation  similar  to  that.  He  "  had  stated  almost 
as  much  a  good  many  times,  in  other  conversations."  All  this 
having  taken  place,  Rundle  got  mad — got  up,  took  the  note  out 
of  his  pocket,  gave  it  to  Seymour,  even  as  he  says  at  page  6  of 
Abstract — "  because  I  would  just  as  soon  he  -would  hold  the  note, 
and  settle  the  matter,  as  myself"  "  To  settle  the  matter  in  regard 
to  that;  to  make  it  satisfactory  to  Alexander."  And  Seymour 
did  settle  the  matter  with  Alexander,  but  in  the  settlement  he 
gained  one  point,  that  had  not  been  talked  of  before — that  the 
note  should  not  be  destroyed,  but  held  by  Alexander,  to  see 
whether  the  work  turned  out  better;  whether  there  would  be 
any  of  the  profits  for  which  it  was  given,  and  how  much. 

If  Seymour's  story  is  true,  why  did  he  put  the  note  in  the 
safe?  If  there  was  no  settlement,  why  did  he  not  keep  the  note 


21 

himself  or  return  it  to  Rundle?  Why  does  he  say  that  he  "con- 
sidered no  one  had  a  right  to  take  the  note  out  of  the  safe,"  it 
Alexander's  rights  were  not  to  be  protected?  Why  was  it  put 
into  the  safe  and  Alexander  given  a  key  to  the  drawer,  so  that 
no  one  could  have  access  to  it,  if  the  property  in  it  was  not 
changed,  if  it  continued  to  belong  to  Rundle,  and  he  to  be  enti- 
tled to  the  possession?  Why  did  Alexander,  when  he  found  it 
was  gone,  at  once  demand  its  return,  and  charge  larceny  upon 
Rundle,  if  Rundle  had  the  right  to  have  access  to  that  drawer, 
and  take  the  note  into  his  own  possession?  Why  did  Seymour 
say,  when  told  by  Alexander  that  Rundle  had  done  wrong,  that 
he  had  no  right  to  take  that  note,  more  than  to  take  Alexander's 
horse,  if  Alexander  did  not  have  the  right  to  keep  that  note  for 
some  cause?  Why  say,  even  as  he  puts  it — if  Rundle  has  done 
wrong,  prosecute  him,  and  I  will  standby  you;  or,  as  Alexander 
and  Wilson  swear,  "  do  it,  and  I'll  stand  by  you," — without  the 
qualification,  if  he  has  done  wrong,  or  criminally  wrong — if  Run- 
dle had  a  right  to  that  note  ?  If  he  did  not  know  that  Rundle 
had  no  right  to  it,  and  that  Alexander  had  a  right  to 
have  it  remain  in  that  drawer  till  the  question  of  profits  was 
settled,  and  if  there  were  none,  have  it  cancelled;  why  did 
he  not  tell  Alexander  so,  and  stop  his  bluster,  instead  of 
saying  what  either  he  or  Alexander  or  Wilson  say  he  said? 
Why  did  Seymour  say  in  his  note  from  the  Tremont  House, 
I  have  your  note,  arid  if  I  do  not  see  you  before  four  o'clock,  to 
give  it  to  you,  you  will  find  it  in  the  safe  at  441  Wabash  Avenue, 
if  he  did  not  know  that  Alexander  was  entitled  to  keep  that 
note,  and  did  not  intend  that  he  should  have  it  ?  Why  did  he 
say  to  Alexander,  in  presence  of  Wilson  and  Tyrrell,  that  it  was 
Alexander's  property,  and  in  the  letter,  either  call  it  Alexander's 
note,  or  recognise  it  as  belonging  to  him,  if  he  did  not  know 


22 

that  that  was  the  fact  ?  Why  did  he  make  any  effort  to  have  it 
returned,  why  not  leave  it  in  Rundle's  possession,  if  it  was  Run- 
die's  property  ;  if  what  he  says  as  to  the  transaction  after  Run- 
die  left  be  true  ;  if  what  Howard  and  Alexander  say  was  the 
agreement  be  not  true  ;  if  he  did  not  make  some  settlement  with 
Alexander  about  that  note,  by  which  Rundle  was  not  to  have  it, 
or  use  it,  to  Alexander's  prejudice,  before  its  maturity  ;  if  it  be 
not  true  that  Alexander  was  not  to  pay  that  note  or  anything  on 
it,  if  there  were  no  profits  realized  on  that  work,  which  was  the 
consideration  of  the  note  ?  The  thing  is  too  clear  for  argument. 
Seymour  and  Rundle  obtained  that  note  and  $3,000  in  money 
without  consideration,  by  making  statements  which  did  not  turn 
out  to  be  true,  in  payment  for  property  and  rights,  which  they 
did  not  have  to  sell,  and  of  course  could  not  nor  did  transfer  to 
Alexander.  The  money  they  had,  or  had  spent  it.  The  note 
they  had.  The  wrong  had  been  discovered.  Seymour  was 
partner  with  Alexander  in  the  work.  He  desired  to  keep  in 
with  him.  He  acted  as  fairly  at  the  time,  perhaps,  as  he  could. 
But  after  the  work  was  done,  after  all  business  relations  had 
ceased  between  him  and  Alexander,  he  lent  himself  to  the  work 
of  getting  more  money  from  Alexander.  He  called  upon  him 
and  said,  pay  a  part,  pay  him  something.  Finally,  seeing  that 
Alexander  would  not  recognize  any  claim,  but  would  give  as  a 
charity,  Seymour  joined  with  Rundle  in  this  second  attempt  to 
filch  money  from  Alexander,  by  a  suit  in  trover  for  the  note. 

The  attempt  to  bring  in  Miss  Seymour,  to  prove  the  tran- 
saction of  July  iSth  is  really  atrocious.  Read  her  direct  exami- 
nation. She  was  fixed  up, — stuffed, — to  say  that,  she  witnessed 
the  transaction  of  putting  that  note  in  the  safe.  We  do  not  think 
she  came  with  any  wilful  purpose,  to  swear  to  what  she  did  not 
think  she  knew.  But  we  do  think,  when  you  read  her  cross- 


23 

examination — read  it  from  the  record,  it  shows  itself  worse  there 
than  in  the  abstract — but  read  it,  and  see  what  a  pitiable  aspect 
she  presented  before  that  jury.  She.  remembered  that  it  was 
July  i8th.  "  I  fix  the  date  because  I  have  an  account  of  it  in  my 
diary." 

CROSS-EXAMINATION. 

Says  she  kept  a  diary;  entered  all  her  transactions  daily  in 
it.  At  page  490  of  Record, — "  I  looked  at  my  diary  this  mprn- 
"  ing.  The  very  words  of  my  memorandum  were  merely  that  I 
"  was  down  to  the  office  that  morning — the  morning  of  the  i8th. 
"  That  is  the  only  memorandum."  Yet  on  her  direct  examina- 
tion she  carried  the  idea — said — she  had  an  account  of  the  trans- 
action in  her  diary.  When  she  comes  to  give  the  words,  there 
is  not  a  syllable  about  the  transaction.  Then  see  how  uncertain 
she  is  as  to  the  time  of  the  day.  Again,  on  her  direct  examina- 
tion, she  said  she  saw  a  note  there;  thought  it  was  in  reference 
to  Rundle  and  Alexander. 

Cross-examined,  she  repeated  what  she  had  said;  but  being 
pressed,  she  says  she  did  not  read  the  note,  nor  hear  it  read. 
When  asked  if  she  heard  it  stated  what  note  it  was,  she  said, — 
"Well,  I  knew  what  note  it  was;  I  had  heard  my  father  speak 
of  it."  But  then  she  says,  I  did  not  hear  it  read  then;  I  did  not 
hear  it  stated  whose  note  it  was,  nor  what  it  was  given  for.  She 
heard  no  other  conversation  between  her  father,  Alexander  and 
Gaytes  on  the  subject,  than  that  her  father  called  Gaytes  from 
the  front  office  into  the  private  room,  put  the  note  into  an  envel- 
ope, and  told  Gaytes  to  put  it  in  the  safe.  She  also  says  that  How- 
ard was  not  there. 

7.  Now  no  one  but  she  pretends  that  Gaytes  was  called  in- 
to that  private  office.  They  were  there  when  Rundle  went 


24 

away.  Alexander  stepped  to  the  door  as  Rundle  went  out,  stood 
and  talked  there  five  minutes  perhaps.  Miss  Seymour  says  Alex- 
ander was  not  there  when  she  went  in,  but  came  in  afterwards.  If 
she  were  there  that  morning,  she  could  not  have  gene  through  the 
door  to  that  room  without  meeting  Rundle  and  Alexander.  If  she 
went  in  while  Alexander  was  out  with  Rundle,  Howard  was  there; 
and  if  she  could  not  see  him,  it  is  incredible  that  she  can  remem- 
ber what  else  took  place  there.  Howard  says  she  was  not 
there.  She  says  the  note  was  given  to  Gaytes  in  the  small  pri- 
vate room.  Howard  says  it  was  not.  And  Alexander  and  Sey- 
mour say  that  the  writing  on  the  envelope  was  done  by  Gaytes 
in  the  general  office.  There  was  a  drawer  cleared  for  Alexander, 
the  note  put  in  there,  and  the  key  given  him.  When  on  her  di- 
rect examination  she  verified  her  statement  by  saying,  "  I  have 
an  account  of  it  in  my  diary,"  we  felt  a  little,  of  what  General 
Jackson  must  have  felt  a  great  deal,  when  he  exclaimed  in  refer- 
ence to  John  Quincy  Adams'  diary  :  "  By  the  eternal  that  diary 
will  be  the  death  of  me."  But  when  we  found  that  there  was 
not  a  word  in  it  about  this  transaction,  and  that  the  entry  in  it, 
which  she  called  "an  account  of  it,"  was  merely  "down  to  the 
office,"  we  knew  that,  that  was  no  account  of  the  transaction, 
and  that  she  could  have  found  like  entries  on  other  days,  and 
that  had  Alexander  fixed  the  surrender  of  this  note  on  any  other 
day,  her  diary  (had  she  not  conveniently  left  it  home,  after  read- 
ing the  entry  of  July  i8th,)  would  have  contained  the  same  ac- 
count of  the  transaction,  to  wit,  that  she  was  "  down  to  the  of- 
office."  Of  course  she  was  not  a  witness  to  the  transaction,  be- 
cause Howard  was  an  actor  it,  and  he  was  not  present  at  the 
one  she  talks  about.  The  transaction  Howard  and  Alexander, 
and  Seymour  had,  was  in  the  general  office,  not  in  the  private 
room,  while  she  did  not  go  into  the  general  office.  At  the  trans- 


25 

action  we  proved,  Alexander  talked  earnestly,  as  well  as  Sey- 
mour, and  there  was  writing  done  on  the  envelope  by  Seymour's 
direction.  In  the  one  she  speaks  of,  Seymour  alone  spoke,  and 
all  he  said  was  to  call  Gaytes  from  the  other  office,  hand  the 
note  to  him,  and  tell  him  to  put  it  into  the  safe,  while  Alexander 
was  •'  dumb  as  an  oyster."  But  why  waste  words,  ink  and  pa- 
per ?  The  farce  is  too  thin,  the  story  too  transparent.  Her  ev- 
idence is  not  of  the  weight  of  a  gossamer. 

8.  We  think  perhaps  this  is  a  proper  place  to  call  attention 
to  what  Rundle  says  about  the  continuance  of  the  firm  of  Sey- 
mour &  Ruridle,  after  the  sale  to  Alexander,  and  his  claim  that 
their  office  continued  to  be  at  441  Wabash  avenue,  as  well  as 
that  the  safe  belonged  to  Seymour  &  Rundle  when  he  took  the 
note  out  of  it.  (Abs.  p.  8,  Rec.  pp.  53  to  62.) 

To  show  how  untruthful  his  statements  were,  see  the  articles 
of  dissolution,  page  28,  abstract,  and  Alexander's  testimony,  fol- 
lowing them,  from  page  168  to  173,  record  —  Howard's  testimony 
abstract  49,  record  325,  to  the  end  oi  his  direct  examination. 
They  both  say  Rundle's  interest  in  the  office,  furniture  and  safe, 
were  transferred  to  Alexander.  Seymour,  at  page  66  abstract, 
record  448-9,  claims  that  it  was  all  transferred  to  him.  So  that 
in  any  event,  Rundle  was  out,  and  did  not  tell  the  truth  on  this 
point. 

Having  presented  very  fully  the  facts,  as  we  believe  the  evi- 
dence establishes  them,  we  proceed  to  state  the  exceptions  to  the 
rulings  of  the  Court  admitting  and  rejecting  evidence. 


Page  8,  abstract,  Rundle  was  asked,  relative  to  what  Alex- 
ander had  told  him  as  to  representations  about  corn,  and  what 


26 


they  found  when  they  went  to  the  work.  The  Court  ruled  the 
question  out  and  we  excepted.  It  was  an  important  fact;  the 
question  was  competent,  and  it  was  error  to  rule  it  out. 

77. 

Page  u.  See  our  question.  The  Court  ruled  it  out,  and 
we  excepted.  Your  honors  will  remember  that  after  Rundle 
took  that  note  from  the  safe,  Alexander  met  Seymour  on  Michi- 
gan avenue.  Seymour  says  that  he  went  direct  from  that  inter- 
view to  the  Tremont  House  to  see  Rundle.  Alexander  and  Tyr- 
rell both  say — though  Seymour  denies  it — that  before  noon  of 
the  same  day  Seymour  came  to  Alexander's  office;  told  him  he 
had  seen  Rundle,  and  thought  he  could  get  the  note  back,  and 
requested  Alexander  not  to  prosecute  Rundle,  till  he  heard  from 
him  again,  and  promised  that,  Alexander  should  hear  from  him 
before  4  o'clock  that  afternoon.  About  3  o'clock  Alexander  re- 
ceived a  note  from  Seymour  on  a  Tremont  Blouse  letter-head. 
Seymour,  Alexander,  and  Tyrrell  testify  to  its  contents.  If  Rundle 
knew  that,  that  letter  was  written,  and  knew  the  contents,  we 
had  a  right  to  prove  it  to  the  jury,  Rundle  was  a  competent 
witness  to  prove  it  by.  It  was  error  to  refuse  us  the  right  to 
call  out  the  fact  from  him.  We  have  a  right  to  assume  that  he 
knew,  and  we  had  almost  said  that,  he  would  tell  the  truth. 
No  matter,  the  question  was  proper,  the  evidence  was  material, 
the  error  is  palpable.  Had  we  proved  by  Rundle  that  he  knew 
the  letter  was  written  by  Seymour  telling  Alexander  that  he 
would  give  him  the  note,  if  he  saw  him  before  4  o'clock,  if  not, 
he  would  find  it  in  the  safe  at  441  Wabash  avenue,  certainly  tro- 
ver could  not  have  been  maintained,  for  the  note. 


At  the  foot  of  page  13,  and  top  of  14,  abstract,  we  put  two 
questions  to  Seymour  on  cross-examination.  The  Court  ruled 
them  out,  and  we  excepted.  We  had  proved  Poindle  at  441 
Wabash  avenue  that  morning,  and  that,  conversation  passed  there 
between  Seymour,  Rundle  and  Alexander,  in  presence  of  How- 
ard. We  were  clearly  entitled  to  probe  it  to  the  bottom ;  to  get 
out  all  that  was  said,  both  to  contradict  Rundle  and  to  get  at  the 
exact  truth.  It  was  error  to  exclude  the  testimony. 

At  page  29  of  abstract,  Alexander  had  stated  that,  after  the 
note  was  put  in  that  drawer  in  the  safe,  his  father-in-law,  who 
came  to  Chicago  from  Springfield,  Mass.,  to  die,  gave  him  a  let- 
ter or  sealed  paper  to  put  in  his  sale,  directing  him  to  open  it  after 
he  was  gone.  That  letter  was  in  the  drawer  when  Rundle 
broke  it  open;  and  as  he  took  the  note,  and  as  the  letter  was 
gone,  the  evidence  was  strong  to  convict  Rundle  of  taking 
the  letter  also.  If  he  took  it  and  did  not  return  it,  it  was  calcu- 
lated to  show  that  the  intent  on  Rundle's  part  was  feloniouus 
when  he  took  that  note.  It  was  competent,  and,  although  the 
witness  answered,  yet  the  court,  in  ruling  out  the  question,  ruled 
out  the  answer.  It  was  error. 

IV. 

We  now  state  our  position  as  to  the  facts  established  by  the. 
evidence. 

i.  Seymour  was  one  of  the  firm  of  Hopper,  Boyle  &  Co. 
in  the  contract  with  the  Philips  &  Colby  Construction  Company 
for  building  the  first  forty  miles  of  the  Wisconsin  Central  Rail- 
road; the  date  of  which,  as  appears  from  the  assignment  from 


28 

Seymour  &  Rundle  to  Alexander  (Abs.  p.  33),  was  Sept.  7,  1871, 
and  in  the  contract  for  building  the  next  sixty  miles  (date  of  same 
January  25,  1872),  and  Rundle  had  been  interested  therein  from 
the  beginning. 

2.  From  their  connection  with  the  work,  as  shown  by  the 
evidence,  Seymour  and  Rundle  both  were  in  a  condition  to  know 
the  state  and  condition  of  the  work  and  the  affairs  of  the  com- 
pany, and  their  property  on  the  work. 

3.  Seymouf  undertook  to  negotiate  a  sale  of  Rundle's  in- 
terest, which  Rundle  knew  and  authorized,  and  finally  consum- 
mated in  person,  after  the  terms  of  it  had  been  worked  up  by 
Seymour. 

4.  In  the  course  of  the  negotiations  with  Alexander,  which 
resulted  in  the  purchase  by  Alexander,  and  sale  by  both  Sey- 
mour and  Rundle  to  him  of  Rundle's  one-sixth  interest  in  the 
plant  on  the  work,  and  the  profits  which  they  represented  had 
been  earned  on  the  work  up  to  that  time,  Seymour  made  state- 
ments relative  to  the  amount  and  value  of  the  plant,  the  amount 
of  profits  earned  and  retained  by  the  construction  company,  the 
state  of  progress  of  the  work,  the  cost  of  doing  it  thus  far,  and 
the  condition  of  the  sub-contractors  on  the  work.     And  Rundle 
himself  was  present  at  some  of  the  times,  and  either  participated 
in  or  knew  what  representations  were  made,  and  adopted  them 
as  his  own. 

5.  The  representations  were,  that  the  firm  of  Hopper,  Boyle 
&  Co.,  had  invested  $33,000  to  $35,000  in  plant,  which,  by  use  and 
deterioration,  was  reduced  in   value  as  they  valued  it,  to  $18,000 

That  they  had  in  construction  company's  hands 11,000 

That  they  were  sure  of  a  bonus  of  $30,000  to 35,000 

But  they  called  the  retained  percentage  and  bonus  $42,000,  and 


29 

with  $18,000  makes  $60,000,  one-sixth  of  which  is  $10,000.  Fur- 
ther representations  were  that,  the  85  per  cent,  of  their  contract 
price  had  paid  for  the  work  thus  far  on  the  forty  miles;  that  Hop- 
per, Boyle  &  Co.  owed  no  debts;  $1,000  or  $1,500  would  cover 
everything;  that  the  work  was  nearly  all  let  to  sub-contractors, 
who  were  all  at  work  actively,  doing  well  and  making  money  at 
prices  Hopper,  Boyle  &  Co.  had  sub-let  to  them  for:  and  that, 
while  they  were  a  little  behind  on  this  forty  miles,  which  by  the. 
contract  was  to  be  finished  by  July  15,  it  was  in  such  a  state  of 
forwardness  that  they  would  have  it  all  done  by  Aug.  15,  when 
the  $11,000  retained  percentage  and  bonus  would  all  be  paid  over 
by  the  construction  company.  And  that  the  sixty-mile  contract 
was  better  than  the  forty  miles,  as  for  the  same  work  they  were 
to  receive  25  per  cent,  more  than  on  the  forty  miles. 

6.  Alexander  did  not  go  on  to  the  work,  nor  make  any  ex- 
amination further   than    of  these    statements   made   to   him;  he 
relied  upon  their  correctness  and  truthfulness,  in  determining 
whether  to  buy  the  one-sixth  interest,  and,  believing  in  their 
truth,  agreed  to  make  the  purchase. 

7.  As  a  part  of  the  negotiation,  one-fourth  of  the  Barraboo 
tunnel  contract  was  also  to  be  sold  and  bought — the  money  which 
they  said  Rundle  had  put  into  it  being  $1,500,  but  on  account  of 
the  accumulated  profits,  that  was  valued  at  $3,000 — and  the  ar- 
rangement was  that  Alexander  should  pay  this  $3,000  in  money, 
and  the  one-sixth  of  the  plant  on  the  Wisconsin  Central,  $3,000; 
which  he  did,  and  for  one-sixth  of  the  retained  percentage  and 
bonus,  $42,000,  gave  his  note  for  $7,000,  which  he  did,  and  which 
is  the  note  in  question. 

8.  The  $13,000  mentioned  in  the  assignment  was  made  up 
as  above  stated,  and  so  understood  by  all  parties,  notwithstand- 


3° 

ing  it    is  called  one  sum  in  the  assignment  which  was  executed, 
and  is  given  at  33  abstract. 

9.  Not  one  of  these  representations  made  as  to  existing 
facts  were  true.  The  plant  was  not  worth  $18,000,  nor  one- 
sixth  of  it.  The  items  given  as  constititing  it  were  not  in  exist- 
ence. They  only  had  about  $3,100  retained  percentage  in  the 
hands  of  the  construction  company,  and  the  bonus  obtained  in 
fact  was  only  $15,000,  (though  the  construction  company  agreed 
to  pay  $30,000,)  because,  the  work  was  not  done  in  the  time 
agreed  upon  when  they  agreed  to  pay  the  $30,000,  and  which 
would  have  been  done,  had  the  work  been  in  the  state  of  for- 
wardness represented.  85  per  cent  of  contract  price  had  not 
paid  for  the  work  as  it  went  along  ;  they  had  drawn  on  the  re- 
serve percentage,  so  that,  as  above  stated,  all  was  absorbed  but 
$3,100.  The  estimate  for  June  was  less  than  the  cost  of  labor 
of  men,  without  the  other  expenses,  by  $2,000 — pay  rolls  being 
$13,000  and  estimates  $11,000.  The  debts  of  the  company  over 
and  above  pay  rolls  were  $15,846,69,  as  shown  by  statement  at 
page  25  abstract,  and  $40,186,52  actually,  as  shown  by  the  cor- 
rect account  at  page  59  abstract. 

The  sub-contractors  had  all  surrendered  their  jobs  to  Hop- 
pes,  Boyle  &  Co.,  but  two,  because  they  could  not  get  pay 
for  the  work  they  had  done,  could  not  live  on  their  contracts, 
and  the  condition  of  the  work  was  such  as  to  preclude  all  hope 
of  completing  it  by  Aug.  15.  It  in  tact  was  not  done  till  after 
September  15,  and,  as  Flynn  said,  the  work  would  ruin  any  com- 
pany that  undertook  to  continue  it.  The  amount  invested  by 
Seymour  &  Rundle  in  the  Tunnel  Contract  was  only  $2,200  or 
$2,300 — $700  or  $800  less  than  they  represented  it. 

10.     Rundle  knew  that  many  if  not  all  these  material  state- 


31 

merits  were  untrue.  He  certainly  knew  that  the  sub-contract- 
ors had  given  up  their  jobs.  He  knew  that  Flynn  was  threaten- 
ing to  leave  the  work.  He  knew  that  their  tools,  teams,  and 
supplies,  were  almost  worthless.  He  knew  that  the  work  was 
not  self-sustaining  at  85  per  cent.  He  knew  the  work  was 
greatly  behind,  and  could  not  be  completed  by  i5th  of  August. 
He  knew,  or  ought  to  have  known,  that  the  15  per  cent,  provi- 
ded by  the  contract  to  be  retained  by  the  construction  company, 
had  been  drawn  upon  largely.  Seymour  knew,  or  ought  to  have 
known,  the  same  thing  ;  and  if  it  be  true,  as  he  says,  that,  he 
had  statements  sent  to  him  every  month,  of  liabilities  &c.,  he 
knew  that  the  company  owed  more  than  $1,000  to  $1,500. 
Why  even  the  letter  which  he  produced  at  page  63  abstract, 
shows  that  June  5th  the  debts  were  $6,569,33  more  than  as- 
sets, and  if  your  honors  will  examine  that  statement,  and  com- 
pare it  with  the  statements  at  pages  25  and  59,  you  will  see  that, 
that  is  nothing  like  the  amount  of  the  actual  indebtedness,  and  still 
Seymour  told  Alexander  and  Howard  that  the  debts  were  only 
$1,000  or  $1,500.  They  both  knew  that,  they  had  not  invested 
$3,000  in  the  Tunnel  contract. 

ii.  We  wish  particularly  to  call  your  Honors'  attention  to 
the  fact,  however,  that  for  all  the  property,  plant,  and  retained 
percentage,  Alexander  was  paying,  on  the  statement  that  the 
company  was  out  of  debt ;  not  that  it  did  not  owe  more  than  it 
had  assets.  So  you  see  here  was  an  actual  debt  of  $19,364.57, 
which  Seymour  knew  about  when  he  was  assuring  Alexander 
and  Howard  that  they  owed  nothing — a  mere  trifle,  $1,000  or 
$i,5ooat_the  outside — which,  in  transactions  of  as  large  magnitude 
as  this,  was  a  mere  flea-bite — a  drop  in  the  ocean.  It  was  so 
inconsiderable  a  thing  in  this  magnificent  work,  so  rich  in  profits 
and  so  successful  in  the  past,  with  such  golden  harvest  promised 


32 

in  the  future, — as  to  be  passed  by  with  a  wag  of  the  head,  a 
shrug  of  the  shoulder,  and  not  to  weigh  a  feather's  weight. 

12.  At  this  point  we  feel  it  Our  duty  to  remark  upon  Sey- 
mour's pretence  that,  he  showed  that  letter  and  statement  written 
by  Montgomery  June  5,  1872,  to  Alexander  and  Howard.    They 
both  say  he  did  not;  that  they  never  saw  it  until  it  was  presented 
in  court  on   the  trial.     The  uncertainty  of  Seymour's  memory, 
and  the  want  of  recollection  evinced  throughout,  is  sufficient  to 
convince  any  one  that,  it  was  never  shown  by  him.     But  it  is  so 
utterly  unreconcilable  with  the  fact  that,  Alexander  made  the 
contract  he  did,  to  pay  Rundle  $13,000,  the  full  value  of  his  in- 
terest in  these  contracts,  and  at  the  same  time  knew  that,  he  must 
pay  over  $3,000  more,  as  Rundle's  share  of  these  debts.    Again, 
when  he  produced  the  statement  found  at  page  25,  and  claimed  that 
they  had  misrepresented  the  amount  of  the  debts,  why   did  not 
Seymour  flaunt  this  letter  in  his  face,  as  an  answer  to  the  charges 
of  deception,  misrepresentation  and  fraud  ?     Why  did  not  Run- 
die,  instead  of  getting  mad  and  running  away,  meet  the  charge 
that  he  was  a  knave  or  a  fool,  with  this  letter,  and  refute  Alex- 
ander's charge  that,  while  they  had  said  the  Company   was  out 
of  debt,  its   debts  were  over  $15,000,  besides  the  current  Pay 
Rolls  for  June      No  man  or  set   of  men,  were  justifiable  in  find- 
ing no  fraud  here. 

13.  But  suppose   we  throw  the  mantle    of  charity    over 
these  men,  and,  except  where  the  conclusion  is   inevitable  that 
they  knew  their  statements  to  be  false,  say  that  they  did  not 
know  that  they  were  untrue;    the  case  is  in  no  way  relieved  of 
fraud.     They  made  the  assertion ;    they  did  not  know  whether  it 
were  true  or  false ;  but  making  it,  saying  the  facts  were  so  and 
so,  was  saying  that  they  knew,  what  they  said,  was  true,  even 
though  they  did  not  expressly  use  the  words,  "  we  know  our 


33 

statements  to  be  true."  It  turned  out  that  their  statements  were 
not  true.  Hence  they  did  not  know  they  were  true,  and  it  does 
not  alter  the  case  for  them  that,  they  asserted  a  fact  to  exist  which 
they  did  not  know  did  exist,  even  if  they  did  not  know  it  did  not. 
Before  a  man  makes  a  material  statement  to  influence  another  to 
act,  he  is  bound  to  know  that  the  fact  is  as  he  states  it  to  be.  If 
it  be  untrue,  and  the  other  is  injured,  it  is  fraudulent.  If  it  be 
true,  but  he  who  makes  the  statement  does  not  know  it  to  be 
true,  he  is  just  as  much  a  liar  as  if  it  had  not  been  true,  because 
the  statement  involved  both  the  assertion  of  its  truth,  and  that 
he  knew  it  to  be  true — knew  it  was  not  untrue.  In  this  case,  if 
you  please,  Alexander  has  been  defrauded  of  his  money  and 
note,  by  statements  made,  which  in  lact  were  not  true  at  the 
time  they  were  made,  and  which  Rundle  and  Seymour  did  not 
know  were  true,  although  they  did  not  know  they  were  untrue, 
did  not  know  either  that  they  were  true  or  untrue — whether  they 
were  true  or  false — but  made  them  without  inquiring  as  to  their 
truth,  when  the  means  were  at  hand  to  learn  their  truth  or  falsity, 
and  when  they  knew  Alexander  and  Howard  were  relying  upon 
the  truth  of  their  statements,  and  their  knowledge  of  their  truth. 

14.  But  we  must  urge  here  that  they  must  have  known, 
did  know,  that  some  things  they  stated  were  not  true.  Hence, 
fahus  in  uno  falsus  in  omnibus,  is  the  rule  here.  And  if  it  be 
said  that,  the  statements  were  made  by  Seymour,  and  that  he 
did  not  know  they  were  not  true,  and  that  Rundle,  though  he 
may  have  known  that  some  of  the  facts  stated  by  Seymour  were 
not  true,  said  nothing  ;  we  answer  Rundle  cannot  enjoy  the  ben- 
efit of  a  false  statement  made  by  Seymour  in  his  behalf,  Sey- 
mour not  knowing  but  it  was  true,  while  as  a  fact  it  was  known 
to  Rundle  to  be  false. 


15.  But  to  return  to  our  enumeration  of  facts  proved,  we 
say  it  is  proved  that,  on  the  i8th  day  of  June,  Rundle,  Seymour, 
Alexander,  and  Howard,  were  at  441  Wabash  Avenue,  and 
were  talking  about  these  false  representations.  From  the  facts 
above  established,  Alexander  was  entitled  to  have  the  note  re- 
turned to  him.  He  was  demanding  its  return.  We  say  that, 
on  that  day,  before  Rundle  left,  Seymour  had  said  to  Alexander, 
that  he  ought  not  to  pay  that  note,  should  not.  We  say  also 
that  Rundle  was  proposing  a  compromise.  Alexander  was 
charging  fraud.  After  Rundle  had  heard  Seymour's  oft  repeat- 
ed statement,  he  got  up  mad,  gave  the  note  to  Seymour  to  settle 
the  matter  with  Alexander,  as  he  had  a  mind  to,  and  went  away. 
Rundle's  own  testimony  proves  it,  (read  page  6  Aabstract,) 
Seymour's  proves  it  more  than  Rundle's,  because  he  says  Run- 
die  told  him  to  "  do  as  he  was  a  mind  to  with  it."  Howard  and 
Alexander  both  expressly  say  he  told  Seymour  that  any  settle- 
ment he  made  with  Alexander,  would  be  satisfactory  to  him  ; 
and  they  say  he  told  Seymour  he  had  as  much  interest  in  the 
note  as  he  had  himself. 

16;  Then  we  say  further  that,  the  proof  is  conclusive,  that, 
that  note  was  surrended  to  Alexander  by  Seymour.  Alexander 
and  Howard  say  it  was,  and  give  the  language  used  by  Sey- 
mour. Seymour  contradicts  them,  as  to  the  language,  at  the 
instant  of  time,  but  still  he  put  the  note  in  the  safe,  in  a  drawer 
set  apart  for  Alexander  of  which  he  carried  the  key,  that- was 
given  to  him  then  and  there.  The  least  that  can  be  said  is,  that 
the  arrangment  made  there,  that  day,  was  that  Rundle  should 
not  have  posession  ot  the  note ;  should  not  take  it  from  the  safe. 
Seymour  claims  that  he  was  the  possessor  of  the  note  and  en- 
titled to  hold  it,  and  never  gave  Rundle  permission  to  have  pos- 
session of  it.  If  Seymour  was  custodian,  he  held  it  for  Alexan- 


35 

der's  benefit,  so  that  if  no  profits  came  from  that  work,  he 
should  pay  nothing.  Hence  we  say  that  it  was  either  in  Alex- 
ander's possession,  put  there  by  Seymour's  direction,  or  in  Sey- 
mour's for  Alexanders  protection,  with  no  right  in  Rundle  to  its 
possession,  nor  to  any  payment  on  account  of  it  unless  there 
should  turn  out  to  be  earned  profits.  And  we  say  that  it  was 
in  fact  «in  Alexander's  possession,  his  note,  and  his  liability  to 
pay  any  part  of  the  $70x30,  was  contingent  upon  there  being 
profits.  There  was  no  dispute  about  the  fact  being  proven  that 
Rundle  was  not  entitled  to  its  possession. 

i  . 

17.  Seymour's  statement  made  to  Alexander,  Wilson  and 
Tyrrell,  and  the  letter  to  Alexander  corroborate  the  proof,  and 
clinch  the  fact  as  being  within  his  knowledge.     They  also  throw 
such  discredit  on  Seymour's  testimony  as  to  render  it  utterly  un- 
worthy of  belief.     He  is  utterly  impeached  on  the  question  of 
ownership  of  that  note. 

18.  Rundle  had  never  asked  Seymour  for\  the  note  from 
July  i8th  to  the  time  he  took  it  from  the  drawer.     He  knew  it 
was  in  Alexander's  drawer.     He  knew  Alexander  was  away — 
had  gone  to   bury  his  dead  out  of  his  sight.     He  knew  that 
Gaytes,  the  bookkeeper,  was  away;   and,  taking  advantage  of 
all  these  these  things,  and  Seymour's  illness,  he  made  the  raid  on 
that  office  in  possession  of  the  colored  boy,  procured  a  locksmith, 
picked  the  lock  or  opened  it  with  false  keys,  and  stole  that  note 
and  the  other  private  papers  belonging  -to  Alexander.     Rundle 
claimed  to  have  a  right  to  be  in  that  office — to.  be  part  owner  of 
the  safe.     But  the  articles  of  dissolution  contradict  him.     How- 
ard and  Alexander  swear  that  Rundle's  interest  in  the  safe  went 
to  Alexander.     Seymour  claims  it  went  to  him.     Rundle  gave 

his  key  to  the  office  to  Alexander,  and  thereafter  the  office  was 

.  ...  ... 


36 

that  of  M.  T.  Seymour  &  Co.  They  all  contradict  Rundle  in 
his  false  claim  to  any  ownership  in  that  safe,  or  right  to  occupy 
that  office. 

19.  Alexander  applied  to  Seymour  for  the  note.     When 
told  that  Rundle  had  taken  it,  his  first  exclamation  was,  he  has 
done  very  wrong.     He  had  no  more  right  to  take  that  note  than 
to  take  one  of  your  horses.    That  meant,  he  had  no  right  to  the 
possession  of  the  note.     Seymour  obtained  it  from  Rundle,  and 
proposed  to  deliver  it  to  Alexander  before  4  o'clock  of  that  day ; 
but,  lest  he  might  not  see  him,  told  him  where  he  could  find  it — 
as  much  as  told  him  to  go  there  and  take  it — if  he  did  not  deli- 
ver it  in  person. 

20.  Now,  July  1 8,  Rundle  put  that  note  into  Seymour's 
hands,  to  settle  the  matter  relative  to  that  trade  and  the  note,  with 
Alexander,  as  he  was  a  mind.     The  settlement  was,  to  say  the 
least,  as  Seymour,  Alexander  and  Howard  all  agree,  that  Rundle 
should  not  have  the  possession  of  the  note;  and  that  whether 
Alexander  ever  should  pay  any  of  the  $7,000,  depended  upon 
the  contingency  named.     That  all  agree  upon. 

21.  Rundle  could  not  acquire  any  right  to  the  possession 
of  that  note  after  that  settlement.     When  he  took  it  from  that 
drawer  it  was  a  criminal  taking.     It  gave  him  no  right  to  the 
possession,  nor  to  dictate  any  terms  to  Seymour,  upon  which  he 
should  receive  it  from  him. 

22.  Rundle  did  deliver  the  note  to  Seymour.     Seymour 
then  and  there1  wrote  to  Alexander  that  he  had  the  note,  or  his. 
note,  and  if  he  did  not  see  him  to  give  it  to  him  before  4  o'clock, 
he  would  find  it  in  the  safe.     That  was  permission  to  Alexander 
to  take  it.     It  was  a  recognition   of  Alexander's  right  to  it — a 
right  which,  by  the  whole  evidence  is  undisputed  and  indisput- 


37 

able.  This  one  act  of  Seymour,  in  getting  that  note  from  Run- 
die,  and  immediately  writing  that  letter,  is  conclusive,  and  gives 
character  to  Seymour's  testimony. 

23.  We  say  there  is  no  evidence  against  Alexander's  right 
to  the  possession  of  that  note,  except  the  lame,  impotent  and  false 
statements  of  Rundle;  and  upon  the  facts,  the  action  cannot  be 
maintained;    and  against  all  the  other  facts,  it  cannot  be  that 
the  verdict  can  stand  on  Rundle's  evidence  alone. 

ir  s*  n       •  TII          /: 

Haycraft  w.  Davis,  49  111.,  456. 

R.  R.  Co,  vs.  Herring,  57  111.,  62. 

77.        ,  /^  TT     J      7    '  O      Til 

Express  Co.  vs.  Hutching,  58  111.,  44. 

D  7  r^l  £       Til 

Peaslee  vs.  Glass,  61  111.,  94. 

• 

i 

24.  We  think  we  have  demonstrated  that  the  note  was  ob- 
tained by  fraud,  from  Alexander,  and  that  in  an,  action  on  the 
note,  Rundle  could  not  recover  anything;  and  that,  therefore,  he 

was  not  entitled  to  a  verdict  in  this  case. 

. 

But,  if  your  Honors  shall  be  of  the  opinion  that,  the  evidence 
does  not  show  fraud,  but  merely  shows  that  Seymour  was  mis- 
taken, as  to  the  matters  stated  by  him  to  Alexander;  and  that 
Rundle  was  also  mistaken  as  to  his  statements;  then  we  say  that, 
Rundle  could  recover  nothing,  because  the  money  paid  by  Alex- 
ander was  more  than  the  interest  in  the  contracts  sold  to  him, 
and  the  consideration  for  this  note  has  failed.  They  did  not  have 
the  thing  to  sell,  which  they  represented  they  did  have,  and  of 
course  could  not  nor  did  give  anything  for  the  note.  There  is 
no  dispute  at  all,  that  instead  of  profit,  there  was  loss,  fully  equal 
to  and  even  more  than  the  $3,100  retained  percentage  and  the  $30- 
ooo  bonus  which  the  construction  company  agreed  to  give  them, 
but  of  which  they  never  paid  but  15,000. 


VI. 

We  will  now  discuss  our  exceptions  to  the  instructions  given 
for  plaintiff. 

1.  We  claim  that,  under  the  evidence,  there  was  no  ques- 
tion of  fact,  to  submit  to  the  jury,  as  to  the  right  of  Alexander 
to  the  possession  of  that  note.     The  evidence  is  uncontradicted 
that,  Seymour,  with  power  to  do  so,  had  placed  that  note  in  Al- 
exander's hands,  with  power  to  hold   it,  at  least,  till  Seymour 
should  demand  it — which  he  never  did,     Rundle  had  no  right  to 
its  possession.     Hence  we  claim  that  the  first  instruction  is  erro- 
neous submitting  to  the  jury  to  find  whether  the  "  note  came  into 
the  possession  of  the  defendant  without  right" 

2.  The  second  instruction  is  erroneous,  because,  while  it 
admits  that  Seymour  received  the  note  with  authority  to  do  what 
he  was  a  mind  to,  yet  it  withholds  from  the  jury  the  question, 
whether  in  the  settlement  or  arrangement  Seymour  made  with 
Alexander,  Rundle  was  to  be  excluded  from  the  possession  of 
that  note;  and  it  assumes  that  Rundle  had  the  right  to  take  that 
note  from  the  safe,  and  withhold  it  from  Seymour  and  Alexan- 
der, when  the  fact  and  the  law  is  that,  when  Seymour  made  the 
arrangement  he  did,  with  Alexander,  it  placed  it  out  of  Rundle's 
power  to  take  that  note  from  the  safe,  to  the  injury  or  prejudice 
of  Alexander;  and,  as  we  have  said  before,  neither  Rundle  nor 
Seymour  could  change  the  conditions  under  which  it  was  to  re- 
main in  that  safe,  as  agreed  between  Seymour  and  Alexander. 
Again,  it  submits  the  question  of  fact  to  the  jury  to  find  whether 
Alexander  took  the  note  from  the  safe  by  direction  of  Seymour, 
when  the  letter  proved  settled  the  question  of  fact,  and  was  con- 
clusive that  Seymour  did  deliver  it  to  Alexander.     The  court 
must  construe  the  written  evidence,  not  the  jury. 


39 

3.  The  third  instruction  is  erroneous,  because  it  contains 
but  one  element  of  evidence  of  the  fraud  practiced  on  Alexander. 
The  representations  proved  were  more   than  as  to  value;  they 
were  as  to  the  existence  of  actual  property,  and  then  there  were 
suppressions  of  material  facts. 

4.  The  fourth  instruction  is  erroneous,  because  there  is  no 
evidence  in  the  case,  either  that  Alexander  did  not  rely  upon  the 
statements  made,  or  that  he  knew  they  were  false.     All  the  evi- 
dence tends  to  prove  he  did  rely  upon  them,  believed  they  were 
true,  and  had  no  reason  to  suppose  they  were  not. 

5.  The  sixth  instruction  is  erroneous,  because  it  tells  the 
jury  that,  unless  Seymour  and  Rundle  knew,  or  had  good  reason 
to  believe,  their  statements  false — when,  as  we  have  demon- 
strated, if  they  made  statements  for  the  purpose  of  inducing  Al- 
exander to  act,  which  were  untrue,  but  which  they  did  not  know 
were  true — knew  nothing  about;  they  were  false  and  fraudulent, 
because  the  statement  of  the  facts  included  a  statement  that  they 
knew  about  them. 

If  one  swear  to  the  existence  of  a  fact,  which  he  neither 
knows  does  or  does  not  exist — has  no  knowledge  of — it  is  per- 
jury; and  it  is  a  lie  on  his  part,  if  it  be  not  perjury,  even  though 
it  turn  out  to  exist,  for  the  reason  stated,  that  the  assertion  of  its 
existence  includes  the  statement  of  knowledge  of  it. 

6.  The  seventh  instruction  is  erroneous:     Seymour's  con- 
nection with  that  note,  on  his  own  showing,  even,  was  such  as 
that  his  declarations  were  binding  on  Rundle,  certainly  as  late  as 
September  14,  1872,  when  Alexander  was  seeking  the  note  and 
Seymour  was  returning  it  to  him. 


4o 


VII. 

Refusal  of  the  Court   to  give  instructions  asked  by  the  de- 
fendant was  erroneous. 

1.  The  evidence   in  whatever   way  viewed,   did  establish 
that,  the  note  was  part  of  the  consideration  for  Rundle's  interest 
in  the  contracts  mentioned  in  the  assignment.      That  Alexander, 
Rundle,  and  Seymour,  had  a  controversy  in  relation  to  the  con- 
sideration of  the  note,  and  whether  it  should  be  surrendered  to 
Alexander.     That  Rundle   did  deliver  the  note  to  Seymour,  be- 
cause of  that  controversy,   as  he  says,  "  because  I  -would  just  as 
soon  he  "would  hold  the  note  and  settle  the  matter  as  myself.      To 
settle  the  matter  in  regard  to  that  ;  to  make  it  satisfactory  to  Alex- 
ander"    As  Seymour   says,  to  "  take  this  and  do  as  you  are  a 
mind  to"  or,  "  as  you  please."      As  Howard  and  Alexander  say, 
to  "  do  as  you  are  a  mind  to,  and  whatever  settlement  you  make 
with  Alexander,   will  be  satisfactory  to  me.     That  Seymour  did 
put  the  note  in  the  drawer,  not  to  be  taken  out,  as  he  says,   "  ex- 
cept upon  his  orders"  as  Howard  and  Alexander  say,  " to  be  sub- 
ject to   Alexander's  control.     This  fixed  the  rights  of  the  parties. 

Rundle  stole  it  out,  and  returned  it  to  Seymour,  who  returned  it 
to  the  safe,  and  by  that  letter,  as  the  Court  was  bound  to  con- 
strue the  language,  as  given  by  Alexander,  Tyrrell,  and  Seymour, 
Seymour  directed  Alexander  to  go  there  and  take  possession  of 
it,  as  he  did  not  see  him  to  give  it  to  him  in  person.  In  pursuance 
of  the  directions  in  that  letter,  Alexander  took  it. 

2.  These  matters  of  evidence,  being  undisputed,  the  Court 
was  bound  to  construe  the  language  as,  giving  power  to  Sey- 
mour to  do  as  he  did,  and  therefore  Alexander  did  not  get  pos- 
session of  the   note   by   any  wrongful   act,  but  by  virtue  of  ar- 


41 

rangement  between  him  and  Seymour,  who  had  power  to  make 
it,  and  to  deliver  the  note  into  Alexander's  custody. 

• 

3.  Rundle,  by  taking  it  from    the  safe,  could  not,  nor  did 
determine  Seymour's   control   over   the  note,   nor   Alexander's 
right  to   keep  it  from  Rundle's  hands,  as  a  protection  against  a 
transfer  of  it  to  an  innocent  party  before  maturity. 

4.  The  first,  second,  third,  and  fifth  instruction  go  upon  the 
ground ;  that  inasmuch  as  Alexander  came  rightfully  into  posses- 
sion of  the  note,   under  the   circumstances  detailed  in  the  evi- 
dence, Rundle  had   no  right  to  demand  the  possession  of  it,  if 
Alexander  had  reasonable  grounds  to  contest  his  liability  to  pay 
the  whole,   or  any  considerable  portion  of  the  money  named  in 
it.     While  it    might  be   that,  were   the  action   on  the  promise, 
Rundle  might  recover  the  whole  amount,  yet  he  could  fiot  main- 
tain trover  for  the  note,  but  must  wait  till  its  maturity,  and  bring 
his  action  on  the  contract. 

We  insist   that  such   is  the  law  of  this  case,  and  that  these 
instructions  ought  to  have  been  given. 

Canfield  vs.  Munger,  12  J.,  347. 
Graham  vs.   Warner,  3  Dana,  146. 
Pierce  vs.  Gibson,  9  Vt.,  216. 

That  trover  will  not   be  by  the  maker  of  a  note  which  has 
been  paid. 

See  Todd  vs.  Ha-wley,  3  Johns,  432. 
Kingman  vs.  Pierce,  17  Mass.,  247. 
flames  vs.  Parkman,  20  Pick.,  90. 

5.  The  fourth  instruction  asked  by  us  was  clearly  proper 
and  ought  to  have  been   given      If  the  note  was  deposited  in 


42 

that  safe  in  the  manner  detailed  by  Seymour,  in  pursuance 
of  the  mutual  agreement  oi  the  three,  and  under  the  agreement 
that,  the  payment  of  it  should  be  contingent  upon  the  success  of 
the  work,  under  the  Hopper,  Boyle  &  Co.,  contract,  as  that 
should  appear,  when  the  work  was  completed,  and  all  accounts 
and  liabilities  growing  out  of  it  settled  and  discharged ;  it  is  ob- 
vious that,  such  agreement  was  for  the  benefit  and  protection  of 
Alexander.  It  is  equally  manifest  that,  such  agreement  deprived 
Rundle  of  any  right  to  the  possession  of  that  note  in  the  mean 
time.  We  think  we  know,  that,  there  is  no  question  that,  the 
key  to  that  drawer  was  given  to  Alexander,  and  the  note  placed 
under  his  control  and  in  his  possession.  But  however  that  may 
be,  the  propositions  contained  in  the  instruction  might  arise  upon 
the  evidence,  and  the  agreement,  as  to  the  payment  of  the  note, 
being  made  contingent  upon  success  in  the  work,  Rundle  had  no 
right  to  the  possession  of  it.  There  is  no  dispute  that  he  had 
violated  the  agreement  under  which  the  note  was  deposited  in 
the  safe.  And  it  was  competent  and  right  for  Seymour  and  Al- 
exander, after  Rundle  had  thus  invaded  the  safe  and  drawer, 
and  after  he  had  returned  the  note  to  Seymour,  to  provide  other 
safe  place  for  keeping  it.  Therefore  since  Seymour  told  Alex- 
ander where  to  get  the  note  if  he  did  not  see  him  to  give  it  to 
him,  and  Alexander  took  it  from  the  safe,  upon  the  implied  di- 
rection contained  in  Seymour's  letter  to  do  so,  such  taking  by 
Alexander  was  not  wrongful.  And  since  Seymour  had  acquiesced 
in  Alexander's  possession,  and  indeed  Rundle  too,  up  to  a  short 
time  before  this  suit  was  commenced,  the  jury  ought  to  have  been 
allowed,  when  we  requested  it,  to  pass  upon  the  question  of  fact 
as  to  the  agreement.  And  since  it  was  clear  from  the  evidence 
that,  the  contingency,  supposed,  had  not  happened;  that  under 
the  supposed  agreement,  the  contingencies  never  can  happen,  and 


43 

Rundle  could  never  be  entitled  to  payment  of  that  note;  that 
there  was  no  liability,  on  Alexander's  part  to  pay  it;  that  Run- 
die  could  not  have  recovered  anything  from  Alexander  on  ac- 
count of  the  note,  the  instruction  ought  to  have  been  given.  The 
jury  ought  to  have  been  directed  to  pass  upon  the  questions  of 
fact  embraced  in  that  instruction.  If  Rundle  could  not  maintain 
an  action  on  the  note,  he  was  not  entitled  to  the  possession  of  it, 
but  Alexander  was.  If,  for  any  cause,  Alexander  was  discharged 
from  liability  on  the  note,  having  possession  of  it  under  the  cir- 
cumstances detailed  in  the  evidence,  he  was  entitled  to  retain  it. 
If  the  agreement  supposed  in  the  instruction  had  been  made,  and 
there  had  not  been  the  success  on  the  work,  upon  which  Alex- 
ander was  to  pay,  then  he  was  discharged,  and  if  discharged,  he, 
not  Rundle,  was  entitled  to  the  possession  of  the  note. 

We  asked  other  instructions,  which  were  givenr  but  none 
which  embodied  the  propositions  contained  in  this  one.  We  had 
the  right  to  have  the  jury  pass  upon  these  precise  questions.  If 
they  had  been  submitted  to  them,  the  verdict  might  have  been 
different. 

6.  The  Court  refused  to  give  our  ninth  instruction  as  we 
asked  it.  We  claim,  and  in  our  argument  on  the  evidence  have 
demonstrated  that,  a  party  who  makes  statements,  to  influence 
another  in  his  actions,  which  are  not  true,  are  false  statements, 
even  though  the  party  did  not  know  whether  they  were  true  or 
false,  if  he  he  did  not  know  they  were  true  when  he  made  them. 
It  is  fraudulent  for  one  to  make  statements,  which  are  not  true, 
when  he  has  no  knowledge  whether  they  are  true  or  false,  and 
if  another  acts  upon  them,  and  damage  ensues,  the  action  for  the 
deceit  can  be  maintained.  Carry  the  thought  one  step  farther. 
If  I  assert  that  a  fact  is  so  and  so,  he  to  whom  I  make  the  asser- 


44 

tion,  assumes,  and  with  warrant,  that  I  know  what  I  assert,  to 
be  true.  If  I  have  no  knowledge  on  the  subject,  or  if  I  am  re- 
peating what  others  have  told  me,  I  ought  to  say  so  ;  my  duty 
is  to  disclose  that  fact  ;  it  is  a  material  ingredient  in  the  state- 
ment, because  to  assert  a  fact,  is  to  assert  that  I  know  what  I 
assert  ;  and  my  knowledge  is  material  ;  hence,  if  I  do  not  know, 
or  am  only  giving  information  derived  from  others,  having  no 
personal  knowledge,  I  suppress  a  material  fact,  to  wit,  that  I 
do  not  know  that  to  be  true  which  I  say  is  true,  or  that  I  am  only 
repeating  what  I  have  heard  told.  A  witness  who  testifies  to  a 
fact,  speaks  of  his  own  knowledge,  and  his  testimony  is  compe- 
tent, but  if  he  say  I  only  know  what  I  have  been  told,  it  is  not 
competent,  and  he  would  not  be  allowed  to  say  anything.  So 
we  say  that,  the  Court  ought  to  have  given  this  instruction,  as 
we  asked  it,  and  it  was  error  to  alter  it  by  striking  out  the  words 
"or  -which  they  did  not  know  to  be  trm." 

For  authorities  that,  an  action  in  case  lies  for  a  false  affirm- 
ation, made  with  intent  to  defraud,  and  damage  ensues,  and  that 
withholding  the  knowledge  of  a  material  fact,  suppressing  the 
truth  with  like  intent,  renders  a  party  equally  liable. 

See  Pasley  vs.  Freeman,  i  Term,  51. 

Eyre  vs.  Dunsford,  i  East.,  318. 

Haines  vs.  Alexander,  5  Bos.  &  Pull.,  241. 

Upton  vs.   Vail,  6  Johns,  182. 
Ward  vs.  Center,  3  id.  271. 

Tapp  vs.  Lee,  3  Bos.  &  Pull.,  367. 

Corbitt  vs.  Brown,  8  Bing.  35. 

Allen  vs.  Addington,  7  Wen.,  9. 

Addington  vs.  Allen,  n  Wen.,  374. 

Boyds,  Exrs.,  vs.  Brown,  6  Bar.,  301. 

Baker  vs.   Walker,  2  Harris  Pa.,  139. 


45 

That  withholding  material  facts,  is  not  only  evidence  of 
falsehood,  but  of  fraudulent  intent. 

See  Eyre  vs.  Dunsford,  i  East.,  318. 
Adding/ton  vs.  Allen,  n  Wen.,  371. 
Boyds,  Exrs.,  vs.  Brown,  6  Bar.,  31. 

7.  The  eleventh  instruction  asked  by  us  should  have  been 
given.  It  is  similar  to  the  fourth,  and  we  have  given  our  views  as 
to  that  fully.  There  is  this  further  reason  why  this  instruction 
ought  to  have  been  given.  This  supposes,  (and  there  is  evidence 
to  support  it,)  that,  after  Alexander's  claim  that  he  had  been  de- 
ceived, and  in  view  of  all  the  facts  proved  by  the  evidence,  it 
was  agreed  that  Seymour  should  hold  the  note,  for  Alexander's 
protection,  so  that  Rundle  could  not  assign  it  before  maturity, 
and  thereby  cut  oft'  any  defense  Alexander  might  have  to  it,  after 
completing  the  work,  and  ascertaining  whether  the  result  should 
be  loss  or  profit,  and  that  it  should  not  be  delivered  to  any  one 
except  upon  Seymour's  direction.  If  such  an  agreement  had 
been  made,  it  would  have  been  binding  and  valid,  and  Rundle 
would  not  be  entitled  to  the  possession  of  the  note,  unless  Sey- 
mour directed  it  to  be  given  to  him.  Not  having  the  right  to 
the  possession,  he  could  not  maintain  trover  for  it,  nor  any  ac- 
tion till  it  matured.  In  view  of  the  fact  that,  Seymour  not  only 
had  not  directed  the  note  to  be  delivered  to  Rundle,  but  when  he 
stole  it  out  ot  the  safe,  where  Seymour  put  it,  he  at  once  com- 
pelled a  return  of  it,  and  then  directed  Alexander  to  go  to  the 
safe  and  get  it,  the  jury  ought  to  have  been  directed  to  inquire 
into  this  suggestion  in  this  instruction  ;  and  we  believe  they 
might  have  found  a  verdict  for  us  had  they  been  so  directed. 


46 
. 

The  court  erred  in  refusing  a  new  trial.  We  have  discussed 
all  the  material  points  in  our  motion  heretofore  in  this  brief — ex- 
cept the  VI — and  think  we  have  demonstrated  beyond  dispute 
or  refutation  that,  we  ought  to  have  been  accorded  a  new  trial. 
We  do  not  think  there  is  any  ground  for  sustaining  the  verdict 
on  the  evidence ;  and  we  do  think  the  court  greatly  erred  in  giv- 
ing and  refusing  instructions,  in  the  particulars  we  have  com- 
plained of. 

We  will  add,  as  to  the  Vlth  point  in  our  motion,  that,  the 
fact  that  the  verdict  was  for  only  about  half  the  note,  manifests 
that,  the  jury  utterly  disregarded  the  facts  and  the  law.  Of 
course  we  say  no  verdict  should  have  been  given  against  us. 
We  think  that,  had  the  jury  regarded  at  all  the  instructions  given 
by  the  court  upon  our  request,  no  verdict  could  have  been  given 
against  us.  It  is  impossible  for  twelve  men,  acting  honestly  and 
fairly,  without  prejudice  or  passion,  to  find  that  Alexander  was 
guilty  of  converting  that  note  to  his  own  use,  or  that  he  did  not 
have  good  right  to  retain  it. 

But  if  Rundle  was  entitled  to  recover  $3,757.39,  he  was  en 
titled  to  recover  $7,000  and  interest  from  the  24th  day  of  June, 
1873.  That  man  does  not  live  who  can,  by  mathematical  calcu- 
lation, cypher  that  verdict  out  of  the  facts  of  the  case.  The 
data  does  not  exist  from  which  that  result  follows.  It  was  a 
gambling  verdict,  given  in  utter  disregard  of  law  or  facts;  the 
result  of  passskm  and  prejudice.  If  you  discard  Rundle's  testi- 
mony, there  is  no  evidence  tending  to  prove  his  case.  Seymour, 
Howard  and  Alexander  contradict  him  on  the  real  material 
points;  and  the  bare  reading  of  his  testimony  convinces  the  mind 
that  he  is  utterly  unreliable,  utterly  unworthy  of  belief. 


47 

This  court  has  decided,  in  this  class  of  cases,  that  a  verdict 
which  rests  upon  the  testimony  of  a  plaintiff,  shaken  and  over- 
whelmed as  Rundle's  is  in  this  case,  cannot  stand.  See — • 

Haycraft  vs.  Davis,  49  111.,  436. 

Jf.  7P.  Co.  vs.  Herring,  57  111.,  62. 

Express  Co.  vs.  Hvtchins,  58  111.,  44. 

Peaslee  vs.  Glass,  61  111.,  91. 

American  Merchants  Express  Co.  (Barrett  &  Fargo} 
vs.  Spades,  and 

Palmer  vs.  Richardson,  M.  S.  of  Sept.,  Tenn.,  1873. 

SLEEPER  &  WHITON, 
ATTORNEYS  OF  APPELLANT. 


. 
- 


KPI 


No..  AGENDA  No. 


STATE    OF    ILLINOIS, 

rente  (jsoniif, 

Northern  Grand  Division, 

' 

Term.  A.  D.   1874. 


APPEAL  FROM  COOK. 


ELIJAH  S.  ALEXANDER, 


vs. 


DAVID  F.  RUNDLE, 


Appellant, 
Appellee. 


UBtrief  ctnb 


Filed 


1874. 


CLERK. 


SLEEPER  A  WHITON, 

FOR  APPELLANT. 

K.    B.  STILLMAN  &  Co.,  Printers,  145  Clark  St. 


